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Malicious Prosecution: A Deep Dive Into Abuse of Power by Police

There are several Supreme Court and high court cases which have revealed how investigations were pursued in order to frame innocent persons or subject them to harassment.

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.
UAPA does not have an expiry date or a due date of lapse, making it the most durable, most enduring, “exceptional” piece of legislation. Credit: Wikimedia Commons

Arresting people has been one of the most common methods of police harassment. Credit: Wikimedia Commons

False cases lodged through courts

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.

Also Read: There Must Be a Price to Pay for Wrongful Convictions

How cops misinterpret their powers

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.

The courts acknowledge that police implicate people

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.

Saga of horrible misdeeds: A sampling of decided cases 

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.

The Delhi police’s special cell has come under scrutiny many times for wrongful prosecution. Representative image. Credit: Reuters

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. Then they went to SC, which held, “The people who are framed up are also victims of crime and hence, the authorities are obligated to pay compensation to them for agony and harassment.”

In the Mecca Masjid bomb blast (2007) case of Hyderabad, the police had picked up Muslim youngsters ranging from paan shop owners, watch repairers, auto drivers to a student pursuing Unani medicine, and implicated them in the case. Later in 2011, following their acquittal, on the recommendation of the National Commission for Minorities (NCM), the state government announced compensation of Rs 3 lakh each to 16 persons.

Also Read: Explainer: Is No One Guilty in the Mecca Masjid Blast?

Can the cops invoke sovereign immunity in their defence?

A usual plea made the cops is that, the state, being an abstract body, can do no wrong and the actions of the state cannot be imbued with any ulterior motive. By an extension of the argument, it implies that the officers of the state too, acting on behalf of it, could not be imbued with any ulterior motive in their acts of commission or omission that turned out to be wrong.

It is not so. In Circulate The Judgment Amongst … vs State of Gujarat (2017), the Gujarat high court held that the plea of sovereignty immunity is based on old feudalistic notions of justice, namely the ‘King can do no wrong’.  This does not exist in the realm of welfare state and the state, like any ordinary citizen, is liable for the acts done by its employees. Similar views were held by the SC in The State of Rajasthan vs Mst. Vidhyawati and Another (1962) and N. Nagendra Rao & Co. vs. State of A.P. (1994) also.

How hopeful you can be of getting relief through quashing of the FIR?

Theoretically, the maliciously instituted FIR could be got quashed from the high court under Section 482 CrPC. However, in practice, this path is fraught with complexities. A division bench of the Supreme Court has held in the case of Som Mittal vs Govt. of Karnataka (2008) that the exception must be applied only when it is shown that grave miscarriage of justice would result if the trial is allowed to proceed, and where the accused would be harassed unnecessarily if the trial is allowed to linger. Detailed illustrative examples were given in State of Haryana and Ors vs Ch. Bhajan Lal and Ors (1990) and by a three-judge bench in Sundar Babu & Ors vs State of Tamil Nadu (2009).

Supreme Court. Photo: PTI

Can the errant cops be punished?

Theoretically, yes. In the celebrated judgment in the case of State of Gujarat vs Kishanbhai (2014), a division bench of the SC held that for all the wrong reasons, innocent persons are subjected to suffer the ignominy of criminal prosecution and to suffer shame and humiliation. The SC ordered that erring officials must be punished departmentally.

Perumal vs Janaki (2014) was one of those rare cases where the SC ordered for the prosecution of the investigating officer under Section 211 IPC (false charge of offence made with intent to injure). The Punjab & Haryana high court, in the case of Harbhajan Singh Bajwa vs Senior Superintendent of Police (2000) ordered for proceeding against the complainants of false FIRs also under Section 182 IPC (false information, with intent to cause public servant to use his lawful power to the injury of another person). Unfortunately, such cases are rare.

Can a victim of malicious prosecution claim compensation?

In theory, yes, you can claim compensation; in practice, it is difficult. There are several judicial pronouncements but there is no explicit provision in the Constitution of India (that is, no statutory right) for grant of compensation by the state for the infringement of right to life and personal liberty. In Smt. Nilabati Behera Alias Lalit … vs State of Orissa and Ors (1993), a division bench of the SC held that the defence of sovereign immunity being inapplicable, award of monetary compensation for contravention of fundamental rights guaranteed by the Constitution is justified.

The celebrated judgment in the case of D.K. Basu, Ashok K. Johri vs State of West Bengal, State of U.P. (1996), the entire law relating to payment of compensation by the state to a victim of state excesses was expostulated. Similar views were held in Rudul Sah vs State of Bihar and Another (1983), Dr. Rini Johar & Anr. vs State of M.P.& Ors. (2016), Durga @ Raja vs State of Madhya Pradesh (2018) and Nandu @ Nandkishore Dheemer vs State of M.P. (2018).

Unfortunately, it is neither happening nor life is so simple. In Gopal S/O Ramdas Shetye vs The State of Maharashtra (2017) and D. Arun vs P.Subramani (2016), the Bombay and Madras high courts have held that the court could not award compensation merely because the prosecution failed to establish the guilt of the accused. It is for the victim to prove that the prosecution was initiated with an oblique motive only for the purpose of harassing him.

One of the most famous cases of compensation awarded is that of the former ISRO scientist Nambi Narayanan. This case is a frightening illustration of the tortuous path of securing justice. In 1994, he was falsely charged with espionage. The case was investigated by the CBI. He was discharged by the CJM court in 1996. The state government ordered a re-investigation. That was also quashed by the SC. Yet, no action was taken against the erring police officials. Nambi Narayanan moved the HC and got an order in 2011. The matter was challenged before a division bench of the HC, which agreed (in 2015) with the government for not initiating any action.

Eventually, after a painfully long wait of 22 years, the victim got justice when the SC in S. Nambi Narayanan vs Siby Mathews & Others Etc. (2018) awarded him a compensation of Rs 50 lakh. The SC also directed for the constitution of a committee headed by a former judge of the SC to find out ways and means to take appropriate steps against the erring officials. Nambi Narayanan was then 77 years old —his life, career, savings and honour had been devastated.

Former ISRO scientist Nambi Narayanan was “arrested unnecessarily, harassed and subjected to mental cruelty” in a 1994 espionage case. Credit: Youtube

Another landmark judgment of compensation of Rs 5.62 lakh is that of the Delhi high court in the case of Prempal & Ors. vs The Commissioner of Police & Ors. (2010). Prempal was falsely implicated by the Delhi police in as many as 18 cases between 1991 and 2007. The court directed the Delhi police commissioner to compensate the victim as well as tender a written apology to the victim and his family for their suffering. The trial court had concluded that the foisting of false cases and harassment of 15 years had reduced Prempal to a living corpse.

Extremely few victims, however, have the resources and the perseverance to take things to their logical end. Most people would prefer to thank God when they are acquitted at last, and blame their fate or karma for the sufferings of the trial. The Law Commission, therefore, made elaborate recommendations for claim and grant of compensation for miscarriage of justice due to police and prosecutorial misconduct. I am, however, not aware of any substantial action by the government over that.

Also Read: CBI Under Modi Ensures the Accused Are Free And the Investigator is on Trial

Who is responsible for this state of affairs?

None but the leadership of the Indian Police Service (IPS) is responsible for the travails of the citizens and the untold miseries the cops heap upon them. They cannot throw the blame on junior investigating officers and try to get away. It is an abject supervisory failure if they cannot prevent their subordinates from committing horrible atrocities.

The issue is not that the prosecutions failed in these cases; the issue is that the prosecutions failed because the entire edifices were maliciously built upon falsehoods. In most of the decided cases, the courts found entire investigations to be foul. Worse still, practically none of the officers guilty of framing them were punished. This is despite the fact that in the Dhaula Kuan fake encounter case, the court had held:

“There cannot be any more serious or grave crime than a police officer framing an innocent citizen in a false criminal case. Such tendency in the police officers should not be viewed or dealt with lightly but needs to be curbed with a stern hand.”

When it comes to claiming credit for the work of their subordinates, IPS officers are very happy to garner TV time and speak in terms of ‘we’, indirectly implying that the brain was really theirs and the investigating officers merely followed their orders. It follows that they are, in equal measure, responsible for all the terrible mistakes that are subsequently pointed out by the courts. We cannot escape the conclusion that they are either incompetent, complicit with their ‘criminal’ subordinates or both.

They cannot take a plea that it is for them to use sections of law and it is for the courts to see as to which sections really apply. If everything is to be done by the courts; if all the mind is to be applied by the courts; why do we need the IPS leadership in the first place; street cops would do. The police do not have a licence to commit atrocities and later claim that they were genuine mistakes or errors of judgment.

Police officers indulge in malicious prosecution of innocent citizens for several reasons. They include the following:

  • Simple financial corruption (by first implicating somebody falsely and then dropping his name after extorting money from him, directly or through subordinates) or threatening to implicate somebody until he coughs up the money;
  • Acting as the agents of some private party to harass his business rivals or whoever for money;
  • Acting as agents of powerful lobbies (political parties, influential organisations or people, etc.) for money or for currying political favours with them;
  • To get undeserved praise from the media and the public, and recognition from the government, particularly when they claim to arrest terrorists;
  • To claim a breakthrough in some high-profile case when none exists;
  • To lend weight to a certain line taken by powers-that-be;
  • To assert their power over the hapless people, that is, an Adlerian psychology trip of self-aggrandisement;
  • To dispose of petty informers past their usefulness;
  • To cover-up extortion, some other sort of exploitation or some more serious crime like rape, robbery or murder;
  • To ‘help out’ colleagues in other parts of the country for similar reasons;
  • To increase the powers in their hands, which naturally accrue to them once they create a paranoia of the nation being under attack from all sorts of terrorists and insurgents;
  • Simple professional ignorance which renders them incapable of detecting and correcting the mischiefs of their subordinates, that is, supervisory lapse.

The path to gaining justice for victims of false cases is arduous, so many don’t sue for compensation. Representative image. Photo: Pixabay

The serious consequences of framing innocent citizens

The evil business of foisting false cases entails a greater consequence for the nation as well. The inability to find, arrest and prosecute the real culprits of charges of terrorism means that the culprits remain happily in hiding somewhere—and would be able to strike again. Thus, framing of innocent persons, particularly in terror cases, seriously jeopardises national security.

Prognosis

Fabrication and frame-ups are not aberrations; they have become the very soul of policing now. Lamentably, the path of securing justice is so tortuous, so expensive that, in practice, extricating oneself from the evil manipulations of the police is extremely difficult. The victims are bound to suffer the most harrowing of experiences for varying lengths of time: illegal detention and torture (both physical and psychological), incarceration and, of course, an agonising trial.

They return home to find jobs lost, businesses destroyed; ‘broken’ family members who have suffered the humiliation and trauma of being associated with ‘terrorists’; children who had to abandon their studies; and parents who had passed away in grief and despair, waiting for them to return.

I do not wish to sound unduly pessimistic but citizens would do well to be realistic and remember what Dante Alighieri had seen inscribed at the gates of Hell, “Abandon all hope, ye who enter here!”

N.C. Asthana, a retired IPS officer, has been DGP Kerala. Of his 46 books, two, namely Leadership Failure in Police and Khaki Mein Ye Darinde analyse the ills that plague police. Views are personal. He tweets @NcAsthana.