A detailed and systematic study undertaken by the Council for
Social Justice (CSJ), Ahmedabad, reveals a shocking pattern behind the main
reasons for the collapse of the cases filed under the Atrocities Act within
Gujarat: utterly negligent police investigation at both the higher and lower
levels coupled with a distinctly hostile role played by the public prosecutors.
Valjibhai Patel, secretary, CSJ (who has meticulously documented
400 judgements delivered under this act since April 1, 1995 in the Special
Atrocity Courts set up in 16 districts of the state), avers that while the
common perception is that the inefficacy of this law is due to false complaints
being lodged or compromises between the parties, in actuality it is a complicit
State that has rendered the Act toothless.
In over 95 per cent of the cases, acquittals have resulted due
to technical lapses by the investigation and prosecution, and in the remaining
five per cent, court directives are being flouted by the government. Often while
crimes under the IPC against the accused have been proved, offences under the
Atrocities Act have not, suggesting a systemic bias against recording and
establishing crimes under this law.
The judgements that have been studied are from special courts in
the districts of Banaskantha, Vadodara, Surat, Mehsana, Patan, Bharuch,
Surendranagar, Ahmedabad, Sabarkantha, Rajkot, Jamnagar, Amreli, Anand, Veraval,
Navsari, Godhra, Valsad and Junagadh. As a result of the attitude of the state
police and the state public prosecutors, those accused under the Act for
criminal acts like murder (for which life imprisonment is the sentence) and rape
are being allowed to go scot-free. (See www.sabrang.com for the complete
CSJ study.)
Numerous judgements of the special courts set up under the
Atrocities Act in Gujarat — which due to lapses in investigation and
prosecution, have led to the acquittals of the accused —have passed strictures
against the negligence demonstrated by both the police and the public
prosecutors and even summoned time-bound ‘action taken’ reports. Often policemen
have even resorted to giving false evidence to protect the accused while
prosecutors have attempted to mislead the courts by arguing that the provisions
of the Atrocities Act are not mandatory.
Under section 4 of the Atrocities Act, "Whoever, being a public
servant but not being a member of a Scheduled Caste or a Scheduled Tribe
wilfully neglects duties required to be performed by him under this Act, shall
be punished with imprisonment for a term which shall not be less than six months
but which may extend to one year." In 95 per cent of the judgements studied by
the CSJ, courts have passed strictures against errant police officials
invoking provisions of section 4 under the Atrocities Act, but the
government of Gujarat, instead of taking action against the erring officers, has
honoured them with promotions.
Severe strictures against the police
The police have also been hauled up by the courts fo tampering
with evidence in many cases under the Act. In these cases, courts have directed
the government to take action against erring police officers for tampering with
evidence and making false depositions on oath so as to save the upper caste
accused. Apart from this, the courts have also directed the government to
produce action taken reports against errant policemen within two months. To
date, the government has not produced any such action taken report before the
court. Instead of punishing the guilty officers, the government has honoured
such officers with promotions!
Examples of such disregard of the Atrocities Act by the
government of Gujarat include the order delivered in Mehsana district Spl.
Atrocity Case No. 16/98, judgement dated January 1, 1999, para 10, wherein the
judge states: "The behaviour of Shri Rathod and the method of investigation have
been discussed. A copy of this judgement to be sent to the District
Superintendent of Police, Mehsana district, with written direction that Shri
Maluji Jituji Rathod, Police Sub Inspector, has not undertaken investigation
seriously. Necessary enquiry to be made in this regard and its outcome to be
reported to this court within two months." With this, the court forwarded a
copy of the said judgement to the DSP, Mehsana, on January 8, 1999. By refusing
to file an action taken report the Gujarat government has committed contempt of
court.
In another judgement from the same district, Spl. Atrocity Case
No. 924/2000, an order delivered in a bail application dated November 13, 2003,
the court observed, "Now if we look at the complaint itself then accused abused
him…by calling him "Dheda". In spite of this, the IO has not
considered the provision of the Prevention of Atrocity on scheduled
Castes/scheduled Tribes Act. This is a serious thing. It is an attempt to divert
the investigation. A copy of this order be forwarded to DySp (SC/ST Cell)
Mehsana for necessary action in the matter."
Similarly, the lower courts within Gujarat have passed serious
remarks amounting to criticism against the police for criminal negligence in
matters relating to the Atrocities Act. In Rajkot district, Spl. Atrocities Case
No. 197/97 dated November 22, 1999, at para 89, page 38, the court states that
"The Investigating Officer had gone to the village Umrali and had made enquiry
with the witnesses and had made notes in this regard. The said notes were torn
and destroyed (by him) and thus deprived the accused and this court from
appreciating the important piece of evidence. This is very serious.... A very
important piece of evidence has been torn, meaning thereby, it has been
destroyed. This is a very serious act and speaks volumes for itself... The
complainant Shri Girishbhai of village Bandra has stated the facts in detail in
his complaint lodged in Taluka police station. However, the responsible police
officer has not made any note regarding his complaint. No entry has been made.
No explanation has been tendered in this regard....The important aspect is that
all the three injured persons were admitted in the morning at 8.45 a.m. where
they have been treated. The case of the prosecution is that the complaint of the
complainant was received at 9.15 in the morning and thereafter he was sent to
hospital. This fact speaks volumes of (police) negligence ...in investigation."
In all the three abovementioned cases, theCouncil for Social
Justice made written representations to the government demanding action taken
reports and legal action against errant policemen under section 4 of the
Atrocities Act. To date, in none of the cases has action been taken so far.
Another judgement documented in this extensive study relates to
court strictures against the police for making a false statement to help the
accused. A judgement delivered in Patan district, Spl. Atrocity Case No. 71/02,
para 16, page 10 states, "It appears from the deposition made by the prosecution
witness No. 9 in his cross-examination that the facts stated are either
inadvertently erroneous or intentionally false statements have been made in
order to help the accused. In the judgement rendered in Sessions Case
No. 27/03, this court has noted that the police officers of this district are
deliberately making false statements in cross-examination. This observation is
endorsed by the aforesaid facts."
Despite a demand made by the CSJ, supported by these judgements,
that action be taken under section 4 of the Atrocities Act against these errant
officials – including the DSP and other responsible police officers – no
action has been taken even after several months.
Under rule 7 of the rules enacted under the Atrocities Act, not
only is an officer of the rank of DySp required to investigate, which often does
not happen (junior beat or police station officials are deputed, vitiating the
rationale behind this provision), but the investigation has to be authorised by
special orders/notification of the government. The rationale behind this rule is
to ensure that persons of integrity, sensitivity and training handle offences
under this Act.
This rule has been flouted in investigation after investigation,
inviting severe strictures by the courts. In Jamnagar district, Spl. Atrocities
Case No. 61/01, para 4 at page 26 of the order, the court details how neither
the investigation by DySp Pavar or PSI Gadhvi were authorised by an order of the
government to investigate the offence, concluding that, since … "No such order
has been produced on record of the case. Probably these officers are not even
aware that they are not authorised to carry out the investigation…Therefore,
the entire investigation of the offence itself is illegal. Based on such illegal
investigation, no accused can be linked with the offence or held guilty of
offence."
Similarly, in Ahmedabad city, Spl. Atrocity Case No. 51/2000,
paras 13 and 1 of the judgement at pages 12 and 15 respectively, the court has
similarly held that not only has the DySp concerned not carried out the
investigation but moreover that the investigation was not specifically notified
to him by government order, thus ironically "the accused Ajmalbhai Velabhai
Rabari is hereby acquitted and directed to be released....However the accused
Ajmalbhai Velabhai Rabari is hereby held guilty under section 235(2) of Criminal
Procedure Code for the offence punishable (under) sections 341, 452 and 504(2)
of the Indian Penal Code." In the final order the accused was punished with
"rigorous imprisonment for a period of 12 months for the offence under section
452 of the Indian Penal Code and further rigorous imprisonment for a period of
six months for the offence under section 506(2) of the Indian Penal Code and
further, payment of fine of Rs. 500 for the offence under section 341 of the
Indian Penal Code. Upon failure to pay the fine, simple imprisonment for a
period of 15 days is ordered."
Thereby, ironically, while this judgement holds the accused
guilty of crimes under sections 341, IPC – punishment for wrongful restraint;
section 452, IPC – house trespass after preparation for hurt, assault or
wrongful restraint; section 504(2), IPC – intentional insult with intent to
provoke breach of peace, but significantly acquits him of offences under
section 3(1)(5) of the Atrocities Act which offences, if proved against him,
would make him guilty of not merely preparing for and committing crimes of hurt,
assault, wrongful restraint and intentional insult but doing so against a member
of the SC or ST, sections of the Indian population who have been dealt systemic
denials for centuries.
Those accused of serious offences like murder and rape, which
may attract convictions under criminal law, are being acquitted by courts under
the Atrocities Act on flimsy and technical grounds such as the fact that
the investigation was carried out in violation of statutory provisions, i.e. was
conducted by an officer below the rank of DySp or that the prosecution has not
produced the caste certificates of victims. Shockingly, though the offence may
otherwise be proved, it is treated as not established because of the absence of
such technical provisions being met by the police.
In some judgements delivered, the courts have made critical
observations on the negligence of the police. In Kheda district, Spl. Atrocity
Case No. 39/01 dated May 7, 2004, para 32 at page 23, the court has observed,
that while "the accused Khant Kanabhai, resident of Sompura Jilodi, Taluka
Virpur is held for the offence under section 323 (punishment for voluntarily
causing hurt) of the Indian Penal Code and under section 235(2) of the Code of
Criminal Procedure, the accused is directed to undergo rigorous imprisonment for
a period of one year and fine of Rs.1000 and upon failure to pay the fine
further imprisonment for a period of three months and for the offence under
section 504 of the Indian Penal Code, rigorous imprisonment for a period of one
year and fine of Rs.1000 and upon failure to pay the fine further imprisonment
for a period of three months… the accused is acquitted for the charges under
section 3(1)(10) of the Scheduled Castes & Scheduled Tribes (Prevention of
Atrocities) Act."
From the above judgement it is clearly established that though
the offence under the Atrocities Act is supported by evidence, i.e. though the
offence is proved, the court has no alternative but to acquit the accused merely
because of negligence on the part of the police authority. Thus the
provision of the Act is violated. This fact has been clearly noted by the court.
With this judgement also the Council for Social Justice made a representation to
the government demanding action against responsible officers under section 4 of
the Act but to date the government has taken no action.
Serious negligence by public prosecutors
The Atrocities Act provides for appointment of special public
prosecutors to try cases under the Atrocities Act but the often hostile role
played by those appointed by state governments to prosecute cases under this law
destroys the case. It has been found that not only do cases often not reach the
stage of trial for several years but when the victim/complainant enters the
witness box to depose, he does not know who the prosecutor is. The CSJ
has studied several judgements in which the courts have passed severe strictures
against deliberate attempts by the special public prosecutors to avoid
implementing the special provisions under the Act thereby vitiating the
prosecution case itself.
Decisions and guidelines issued by the higher judiciary,
including the Supreme Court and various high courts, in cases of atrocity under
the Atrocities Act, establish that the prosecution needs to prove that the
complainant belongs to a Scheduled Caste or Scheduled Tribe and that the accused
does not belong to a Scheduled Caste or Scheduled Tribe and that the incident
involved is a direct result of caste discrimination resulting in caste-based
crimes. All this needs to be established in the special courts by the special
public prosecutors through a thorough examination of the accused. The PP is
required to produce a caste certificate for the complainant in court,
accompanied by the recognised list of Scheduled Castes or Scheduled Tribes, and
point out to the court that the accused does not figure in the list of Scheduled
Castes or Scheduled Tribes and thus prove that the accused belongs to the upper
caste.
Normally, victim complainants hailing from the SCs or STs who
approach the Court are from poor and illiterate sections of the rural
population, unaided by the PP or the State. Their caste is established by the
PP, as is the caste crime itself. An utter lack of commitment to this
legislation and lack of political will by state governments to prosecute the
atrocities committed under this Act have rendered this legislation meaningless.
In a judgement delivered in Patan district, Spl. Atrocities Case No. 375/02,
para 10 at page 5, the judges state, "It is held by the Supreme Court in the
judgement reported in 2000-SCC-722 that in the cases of offence under Atrocities
Act, merely because the victim belonged to the Scheduled Caste and the accused
belonged to the class other than the Scheduled Caste, the provisions of the Act
can not be made applicable. It must however be proved by the complainant that
the victim belonged to the Scheduled Caste and that the incident took place
because of the reason that the victim belonged to the Scheduled Caste. If
anything is done by way of discrimination or unsociability against the people
belonging to the Scheduled Caste, law prohibits it. In view of this provision,
in the instant case, it does not appear that the alleged incident took place
merely because the complainant belonged to the Scheduled Caste."
Incidentally, the Scheduled Caste Welfare department of the
state government, created with the objective of providing social justice to
Dalits and Adivasis, has glaring vacancies in key posts making the
implementation of social justice measures even more difficult. There are over
300 vacancies in this state department, from the rank of district officer
downwards in Gujarat alone.
— TS