Excesses of Police in Criminal Justice Administration and Its Remedies

POWERS UNDER ORDER VII, RULE 11, C EXCESSES OF POLICE IN CRIMINAL JUSTICE ADMINISTRATION AND ITS REMEDIES By Haleem Ahmed, Civil Judge & Judicial Magistrate, Karachi Police is an organization established under the law to protect life liberty, property of the citizens. Among other things primary function of police is to promote and preserve public peace which also includes ensuring that the rights and privileges, under the law, of a person taken in custody, are protected. Essentially, police is entrusted with the task to prevent the offences and to bring the offenders to justice. Keeping these ideals in mind one would imagine that they do not work in the real world. In practice nobody expects any courtesy from police for the reason the police have deviated from its lawful functions. Instead of assisting the public and securing their rights provided under the law in all matters pertaining to criminal justice it often resorts to- force, coercion, foul play, dishonestly and deceit etc. Grievances of litigant public against police are seldom resolved. Precisely, at present there is no effective check on the powers of police under the law, and the undue leniency shown by the Courts towards police even when they are guilty of gross negligence and commission of serious crimes. As a result, litigant public face an awkward ordeal. Constitution provides for equal protection and equal treatment of all citizens. It does not create any exception for police. When police officer is accused of gross negligence and sometimes serious offence he does not receive proper treatment as provided under the law. There are numerous examples in legal process where even illegal and unlawful actions of police are frequently condoned or ignored for no good reason. Consequently, the attitude of police remains static and it does not advance any change. The illegalities and irregularities that they commit during criminal justice administration still persist. Surprisingly no State functionary takes cognizance as provided under the law. Genuinely speaking, the excesses of police with public are escalating with no one to check their arbitrary power. This practice is antithesis to rule of law. Scheme of Constitution provides for effective check and balance system which is neatly governed by statutory enactments. Let's examine in nutshell the excesses committed by police in criminal. justice administration. There is common complaint of public regarding non-registration of F.I.R. by police. Under the law S.H.O. is duty bound to lodge F.I.R. and he has no power to refuse to record statement under section 154, Cr.P.C. In such cases law provides two fold remedies in Cr.P.C. the complainant is required to move application under section 156, Cr.P.C. before concerned Magistrate or alternatively he can move Sessions Court by filing petition under section 22-A, Cr.P.0 seeking direction to police to register F.I.R. Even if on the direction of Magistrate or Sessions Court acting as Ex Officio Justice of Peace S.H.O. does not record the F.I.R. without solid reasons and when this fact is brought in the knowledge of the respective Courts they can charge the concerned S.H.O. under section 166, P.P.C. Opponent of this proposition argues that order for registration of F.I.R. is administrative one and not a judicial one, therefore, no proceedings can be initiated by Courts under the law. This argument has no substance and it is wholly unfounded. Section 166, P.P.C. is covered by Chapter IX with heading "OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS" the plain text of section 166, says that whoever being public servant knowingly disobeys any direction of the law as to the way he is to conduct himself as such public servant, intending to cause injury to any person shall be punished for simple imprisonment for a term which may extend to one year or fine or with both. This offence does not come under Chapter X of P.P.C. which is related to contempt of lawful authority of public servant. Disobedience of the direction of law is not contempt of Court under P.P.0 as it is defined and enacted as a separate offence related to public servants. This provision is punitive in nature and it has no relation to contempt proceedings. The proceedings of contempt of Court and lawful authority are provided under Chapter X of P.P.C. Therefore, the Court while initiating proceedings under this section does not take action in contempt proceedings but for disobedience of any direction of the law before competent forum. Reliance is placed on the case of Moula Bux alias Moledino v. S.H.O. Police Station Hatri Ghulam Shah 2003 YLR 1316. In case of violation of such direction for registration of F.I.R. these proceedings can be conducted by filing a complaint under section 200, Cr.P.0 before Special Judge Anti-Corruption. Police should not be left scot free in case of disobedience of direction of law. Alternatively the Courts can issue necessary direction to head of district police to take disciplinary action as provided under the rules of service. In case of serious and repeated violations of law both proceedings can be initiated by Courts simultaneously in order to create deterrence to punish delinquent police officials and to establish rule of law. This course does not violate fundamental right as laid down under Article 13 of Constitution. Article 13 and section 403, Cr.P.0 lays down that no person can be vexed twice for the same offence by a Court of competent jurisdiction. The disciplinary proceedings are departmental in nature that can go side by side with Court proceedings. These proceedings are not hit by Article 13 read with section 403, Cr.P.C. the rule has been laid down by honorable Supreme Court in the case of Amir Abdullah v. Superintendent of Police 1989 SCMR 333 and DIG Police Lahore and 4 others v. Anis-ur-Rehman Khan PLD 1985 Supreme Court 134. Excesses of police are not limited to non-registration of F.I.R.. Law authorizes a police official to arrest any person who is involved in non- cognizable offence without a warrant from Magistrate. This power is contemplated under section 54 of Cr.P.C. Police officer under S.54, Cr.P.C. cannot arrest a person in any cognizable offence at his sweet will and caprice and he is bound to fulfil the necessary conditions that there should be a reasonable complaint; that there should be a credible information and that there should be reasonable suspicion against the person to be arrested. See the case of Allah Rakhi v. SHO 2010 MLD 271. In that case honourable High Court further observed that words "reasonable suspicion" do not mean a mere vague surmise, but a bona fide belief on the part of the police officer that an offence has been committed or is about to be committed. Such belief has to be founded on some definite averments tending to throw suspicion on the person arrested. Secret information that the alleged detenu used to commit such-like offences is in no way sufficient to believe that he was concerned with the commission of the offence. No doubt under S.54, Cr.P.C. wide powers had been given to Police Officer to arrest a person but those powers were subject to limitation mentioned in said section which did not mean that Police Officer at his own sweet will would arrest anybody he liked although he could be peace loving citizen. Intention of law makers while giving such powers to Police Officer was that reasonable suspicion should at least be founded on some definite facts tending to throw suspicion on person arrested and not on a vague surmise. If Police Officer had no material with him against accused, then arrest of accused would be illegal. Reference is invited from the case of Rasool Bux v. State 2005 YLR 2005. Dialating upon the powers of police officer to arrest the honourable Supreme Court in the case of Muhammad Zakaria v. State PLD 1999 Supreme Court made valuable observation in these words: "General definition of what constitutes reasonableness in a complaint or suspicion and credibility of the information cannot be given, but must depend upon the existence of a tangible legal evidence within the cognizance of the Police Officer and he must judge whether it is sufficient to establish the reasonableness and credibility of the charge, information or suspicion." Arrest by police without warrant under section 54, Cr.P.C. cannot be invoked without credible evidence or material in the matter especially when the circumstances where under powers of police can be exercised has been specifically incorporated in that section. The arrest of a person by, police official in violation of section 54 or 55, Cr.P.C. is illegal for which the police officer is liable for Prosecution under section 220, P.P.C. before the competent Court of law. The power of arrest of police officer can be effectively checked by Magistrate at the time of remand. Primarily two factors are important at remand stage inter alia. Firstly whether police produce accused within 24 hours of his arrest. Secondly arrest of accused is justified under the law meaning xhereby that allegation contained in F.I.R. against the person is well founded. Person who has been arrested by police under F.I.R. can be produced before Magistrate in at least four possible situations. In the first case the person arrested is not nominated in F.I.R. and no other incriminating evidence is collected against him but arrested on mere suspicion which is not .reasonable. In the second case person is - arrested by police under F.I.R. which contains information that does not disclose cognizable offence though he is nominated in F.I.R. In the third situation a person arrested, by police under F.I.R. where information discloses a cognizable offence but there is no evidence to prima facie show that he is involved or concerned in the alleged offence. In the fourth place person arrested by police who is nominated in F.I.R. and there is some evidence against him but such.evidence is inadmissible one which cannot be relied upon. In the first case the arrest is absolutely illegal and unjustified. The arresting officer should be taken to task under section 220, P.P.C. before appropriate forum by the Magistrate. This practice of illegal arrest should not be allowed to continue as it violates the fundamental rights such as laid down under Articles 9, 10, 14 ' and 25 of the Constitution. The violation at this stage is to be considered without due process of law. The personnel responsible for making arrest should be taken to task for negligence of duty as provided under section 29 of Police Act, 1861 and illegal confinement as contemplated under section 220, P.P.C. In the second case when person is arrested under F.I.R. which does not disclose a cognizable offence the person arrested should be released under section 63, Cr.P.C. by the special order of Magistrate and the F.I.R. is to be cancelled upon submission of final report with a note of warning to S.H.O. to remain careful in future. In third case when evidence for arrest of a person is lacking the arrest should not be allowed to continue and arrested person should at once be discharged with the observation that police can re-arrest him after collecting sufficient evidence. In the fourth case accused should be set at liberty when evidence collected by police is inadmissible and therefore, which cannot be relied by Court for trial of accused. Thus, the arrest of a person in all these cases is illegal, unjustified and unlawful. The law gives ample powers to Magistrate to put a strong check on the arbitrary powers of police. The rationale behind remand under the law is that Magistrate is given authority under the law to authorize detention of a person arrested beyond the period of 24 hours. Remand amounts to curtailment of liberty of a citizen which is fundamental right of citizens therefore; it should not be freely granted by Magistrates without application of mind and taking cautions as provided under the law. The arrest of a citizen or any other person without any legal justification and his detention through unjustified remands besides being illegal creates a sense of insecurity in the minds of the people and no greater mischief than this can be imagined. This was observed by honourable High Court in the case of Muhammad Hanif and 2 others v. NAB PLD 2007 Karachi 429. It is normally observed that after obtaining remand police resorts to illegal practices such as infliction of torture upon accused which is violation of Article 14 of Constitution. The dignity of man, subject to law is inviolable, and no person shall be subjected to torture for the purpose of extracting evidence. This is constitutional guarantee and it shall be protected at all cost by the Courts. Commission of torture to accused or any other person detained by police or any other agency legally empowered to detain any person is an offence as defined under section 337-K, P.P.C. Police does not only inflict corporal punishment but by taking physical custody of accused they demand huge bribe in return of concessions during Investigation. The amount of bribe would invariably determine the quantum of concessions to be awarded to accused. And in turn police manage the result of Investigation at their sweet will; this is the place where justice is crushed so mercilessly that it can be restored. Unfortunately this practice of police remains unchecked and unrestricted. There are hardly any institutional checks on the arbitrary powers of police. Nevertheless the power and authority of Courts can be extended to deal with such a situation in appropriate cases by invoking the relevant provisions of law that permit action against delinquent police officials with promptitude. Illegal detention is another predicament of public. District and Sessions Judges regularly receives applications under section 491-A, Cr.P.C. for recovery of persons under wrongful confinement of police at Police Stations. In such cases Magistrate or the Court official is appointed to conduct raid for recovery of detenu. When the detenu is found under illegal confinement at Police Station no serious action is initiated against police officials. Illegal detention is a flagrant violation of liberty of citizen which is guaranteed under Constitution. Such action of police clearly amounts to offence punishable section 220, P.P.C. Scarcely any occasion arises when the Court takes cognizance of this serious offence. Under the law offence under section 220, P.P.C. is triable by Sessions Court upon receiving complaints from Magistrate who conducted raid or the Sessions Court may prefer such complaint before Additional Sessions Judge for trial of accused in accordance with law. The trial Court is empowered to hold summary trial itself as provided under sections 476 to 480, Cr.P.0 and award punishment as provided under the law. It has been frequently observed that instead of awarding proper treatment provided under the law matter is always left at the discretion of executives to the charging of people. This is the movement where the victim is vexed twice firstly at the hands of police and secondly from the Courts. There are structural and inherent weaknesses in the hierarchy of police department. Barely any action is initiated against the police officer that affects his service record. As a result the delinquent police official finds easy escape way out. The legislature while enacting section 220, R.P.C. fixed its maximum punishment to seven years imprisonment. The intent and purpose of such a law was to create fear, deterrence and respect for the rule of law among police and other law enforcing agencies so that police or any authority should not keep any person under illegal confinement. The offence under this section comes under Chapter XI of Pakistan Penal Code which is related to "Offences Against Public Justice". Therefore, section 195(1)(b) Cr.P.C. clearly lays down that no Court shall take cognizance except upon a complaint in writing of such Court or of some other court to which such Court is subordinate. The power to conduct such proceedings is only prerogative of the Courts and no other person can file complaint against such offence. There are three essential points under the scheme of the law. Firstly the offence under section 220, P.P.C. is related to offences against public justice; secondly, law provides severe punishment of this offence; thirdly the cognizance of the offence can be taken by the concerned Court and this right is not given to ordinary citizens. The legislature enacted this law in order to safeguard liberty of people from being encroached by police or any other authority established under the law and in case of violation provides for strict punishment by the Court. The object of this law is to create a necessary check upon the arbitrary powers of police and other law enforcing agencies and provide a means to deal with it in case of violation of constitutional liberty. The severe punishment provided under this section indicates the seriousness of the offence and the power to take cognizance and trial is conferred upon the Court to deal with it strictly and not compassionately. The intention of the Parliament while enacting the law was to curb the mischief commonly prevalent at that time dated back to 1860. The existence of the provision after lapse of more than 150 years is indicative of the fact that the mischief which legislature intended to curb still persists. The reason for continuous ill is to a great extent indisposition of the Courts to implement the will of the legislature. Primary duty of the Courts is to carry out the will of Parliament. In case of failing to exercise this vital and essential function the Courts would be deviating from its mandate given by Parliament under the law. The Courts cannot substitute the will of the legislature by its own. When the legislature requires particular offence to be dealt with strictly the Courts have no option but to enforce the will of the legislature. . The conduct and performance of police in justice administration is reflected from the fact that many a times police register false cases against the people mainly on two grounds: the person proceeded against is habitual offender and hardened criminal; Complainant is not ready to lodge F.I.R. against the culprit. According to Chapter XXIII rule 4 of Police Rules, 1934 in every Police Station there shall be a Surveillance Register No: X for all persons who have been proclaimed offenders, all released convicts, all persons restricted under the Rules of government, persons who are reasonably believed to be habitual offenders or receivers of stolen property whether they have been convicted or not; persons under security under section 109 or 110, Cr.P.C. etc. According to Rule 13 personal files of suspects are to be maintained in every Police Station. As soon as suspicions have come into record regarding an individual to an extent which indicates that he is addicted of crime or is the associate of criminals, such record should be tabulated to for the foundation of a personal file. Rule 16 prescribes for Bad character rolls of the suspects and other persons. Rule 17 proposes Information sheets which shall be used by an officer for the double purpose of obtaining and communicating information about residents of other Police Station jurisdictions that are known or believed to have visited his Police Station jurisdiction with criminal intent. The information sheets shall be issued by S.H.O. as a means to ascertaining the antecedents of suspects and other criminals. If the relevant record as provided under Police Rules is regularly maintained in every Police Station then the police officials shall have no difficulty in ascertaining habitual criminals and suspects and precede them in accordance with law. And the need to implicate them in false cases will never arise. Likewise, police officer must not register false cases against the genuine offenders on the pretext that complainant or the victim refuses to register F.I.R. and it is pertinent to entangle criminals in various cases so that they remain behind the bars for some time. This is sheer abuse of the process of law. In all such cases S.H.O. or any police official is required to register F.I.R. on behalf of State if offence is the one which falls under the category of section 44, Cr.P.0 or any other offence which is not expressly barred under the law police official is competent to lodge I.LR. when he receives information related to cognizable offence. Section 154, Cr.P.C. does not stipulate any bar against any police official for giving information as to the commission of cognizable offence in absence of 'private complaint. There is a grave misunderstanding about the law among the police officers. It is assumed' by police officials that they cannot register F.I.R. when they are also the witness of the incident or at least they receive information in respect of cognizable offence. Section 44 read with section 154, Cr.P.0 permits police officer to register F.I.R. in all cases irrespective of the fact whether police officer is a witness to the incident or victim or aggrieved person. Statement under section 154, Cr.P.C. is mere information of a cognizable offence to set the machinery of law into motion. It's not a substantive piece of evidence. The F.I.R. should not be refused on the mere apprehension that case against the accused will not be made out due to lack of evidence: If there is lack of evidence the Investigation of the case should be suspended under "A" untraced class. But the incident should be reported and at least minimum evidence available on record is to be collected and preserved so that it must be utilized when new or fresh evidence is discovered and the case is reopened. The police officials are guilty of offence under section 220, P.P.C. when they intentionally omit to give information of offence because they are bound to report the offences under the law. The criminal justice administration is founded on the basic principle that no offence should go unchecked and no offender should go unpunished. This fundamental principle of law has its genuine object and purpose which shall be fulfilled. It shall not be defeated and frustrated. Moreover, police officials feel hesitant while listing their names as a witness of the incident. It is well settled principle that police official is competent witness as any other witness. According to Article 3 of Qanun-e-Shahadat all persons shall be competent to testify unless the Court considers they are prevented from understanding the questions put to them or from giving rational answers to those questions by tender year, extreme old age, disease, whether of body or mind or any other cause of the same kind. This pattern of thinking is against the law and public policy. Where police officer is a witness of the real incident he should not avoid to become witness but he should come forward to assist the I.O. in ascertaining the truth. In case he fails the police officer is guilty of offence punishable under section 187, P.P.O. as well as offence under section 29 of Police Act, 1860. In appropriate cases the delinquent officers should be brought to book. The practice of registration of false cases by police on any pretext against people should be discouraged by Courts. The Courts have to invoke appropriate provisions of law to check this noxious evil. The Courts shall never cooperate with police in such matters when actual facts of the case are unearthed or discovered. For instance when F.I.R. is registered by police officer against any person that in turn is proved to be false during Investigation the informer should be taken to task under section 182, P.P.C. before the Court of law by S.H.O. or concerned police officer. Similarly when it is discovered that police officer has preferred a false charge against any person he should be strictly dealt with under section 211, P.P.C. Likewise institution of false and fabricated cases of multiple kinds should be dealt in accordance with law as provided under Chapter XI of Pakistan Penal Code commencing from sections 191 to 228. These directions are also contained in National Judicial Policy, 2009 which should be followed in letter and spirit by Courts in order to make the justice system more effective and result oriented. The institution of false cases against people by police has drastic effect on the criminal justice system. The courts are overburdened with truckloads of work. Eventually the Judges hardly find much time to conduct trial of genuine cases. This state of affairs impairs the quality of judgments. The ratio of conviction is substantially reduced since the Courts frequently extend benefit of doubt' to offenders due to defective Investigation and lack of evidence. Justice is being given to accused and hardly any order is passed in favour of complainant. Accused is considered favourite child of law whereas complainant stands as an orphan kid. All the benefits that accrue from the result of a criminal trial go in favour of accused while complainant gets awkward ordeal of a criminal trial. The credibility, efficacy and effectiveness of the criminal justice system are often questioned. Considerable responsibility of the failure of justice system devolves on the police. As without support and sincere efforts of police, Courts or the Prosecution can do nothing. From the stage of first information report to the end of trial all the material that is placed before the Court and all the witnesses including case properties and other relevant reports and materials are to be produced in Court through police. It is settled principle of law that opinion of the police is not binding upon the Court but in reality the judgments of the Court depend upon the evidence which is collected by police and Court has to base its definite finding on such evidence. It means police greatly helps the Court to arrive at a decision and the role of the Court is limited to the evidence that is produced by police. Therefore, the opinion of police cannot always be overlooked since the Courts do not have its own agency to collect the evidence. The main function of police under criminal justice system is to conduct Investigation justly, fairly and impartially. The Investigation is defined under section 4(1), Cr.P.C. which includes all proceedings under this Code for the collection of evidence conducted by a police officer or any other person who is authorized by a Magistrate. Under the Code Investigation consists of generally of the following steps: (1) Proceedings to the spot. (2) Ascertainment of the facts and circumstances of the case. (3) Discovery and arrest of the suspected offender. (4) Collection of evidence relating to the commission of the offence. (5) Formation of opinion. Reference is invited from the cases reported in 1999 PCr.LJ 1357, AIR 1955 SC 196, AIR 1959 SC 707. ' When a police officer is investigating a case he cannot act arbitrarily, capriciously, and whimsically. He is as much bound by law as any other person and if his actions are not warranted by law, then can be declared to be without lawful authority. He takes the authority to investigate under the Code, the Police Act, and the rules made there under. The purpose of Investigation is to find out the truth and present it to a Court by way of admissible acceptable evidence; it is as much to protect the innocent as to bring the guilty to justice and never to let the guilty to escape because of carelessness; excess of zeal or negligence on the part of investigator. In case police officer investigating a case intentionally and deliberately fails to perform his lawful function he must be taken to task as required under section 29 of Police Act, 1860 for conducting dishonest Investigation. Additionally Investigation Officer may also be charged for offence under section 166, P.P.C. for violation of the direction of law with intent to cause injury to any person. He may also be guilty of offence under section 187, P.P.C. upon submission of final report of Investigation if the Court is satisfied that reasonable grounds exist to believe that I.O. has violated any of the provision as characterized in Chapter X and Chapter XI of Pakistan Penal Code he must be charged with that offence(s) accordingly. Often we observe that Courts take the eyes off from such offences when they are brought into the notice which results in miscarriage of justice. When police officials violates the law and they are not punished as required by the law it sends off a disquieting message for people. This gives police licence to commit frequent violation of law with no authority to place any check on the arbitrary powers of police. This practice of police has put the entire system at stake. People are losing faith in the criminal justice system. People hardly come to Court for settlement of disputes and redressal of grievances knowing well that justice will not be done due to excesses of police. When they come to Court they come half-heartedly with little hope of getting justice. The circumstances and situation warrants some strict action against the delinquent police officers when they commit serious offence. The Court is armed with the sole function of administration of justice. The acid test of justice is that it should be done with the person wielding enormous power when guilty of a crime. He should not be scot free merely on the pretext that he holds authority, or it is against public interest or it will bring about the conflict of intuitions. All these considerations for taking a lenient and being compassionate are unreal and wholly unfounded. Bringing perpetrators of crime to justice is the basic object of Courts and it is line with public policy and in the interest of the State. The man in un uniform should not be set free for the reason that it is against the dignity of a person. The dignity of a person is always subject to law. It shall not be frequently granted in favuor of offenders. One thing the Courts must realize at this point of time that if the protector of law becomes its violator the Court should strike at it with iron hand in order to establish its writ and for maintaining the rule of law.