Tuesday, July 22, 2008

Civil Disputes and Police interventions

What is the face of Police that is familiar to you? Do you see it as the protector against wrong and a punctilious enforcer of law and order? Or, you have been exposed to only an ugly corrupt countenance of the police force and hence would want none of it for resolving your pressing problems with a brazen transgressor of law? The Hindu mythology assigns to Vishnu the role of a cosmic protector, who constantly participates in worldly affairs, ensuring that all is well. Outside the ring of Agamic pantheon of Hinduism, lies the rural tradition of worshipping grama devadai, which is called kaval deivam. Along with Karuppasamy or Muniswaran or Sudalai or the formless Nadukkal, you will find a stony police man also, with a long moustache but having a kind face. Worship is offered to the statue of police in so many villages. From a protector, police has unfortunately become a symbol of oppression and protector of the bully and the villainy rich. The more fearsome he looks the closer to reality he is.

Look at the scene of crimes in India. Most of them have property disputes as the genesis and to a lesser degree, are matrimonial disputes including infidelity or promiscuity. If the police are involved at the earliest stages of property disputes or matrimonial discord, there is a chance of abatement of factious differences and defusing fulminating volcano of conflicts. Police know their worth and the significant role that they could play. A trident could be a protective weapon, if it is wielded to protect but a veritable killer when it is brandished to offend. If the police receive a complaint of land dispute or matrimonial woes of demand of dowry or other forms of cruelty and act with responsibility, we would have half as fewer crimes, given the natural propensity of our folk to assign a kavalkaran (protector) status to the police. Pathetically, we have systematically degraded every institution that ought to protect us. It is now the proverbial fence eating up the crops.

You will find a petition to the police regarding property dispute will be referred to civil court without the police undertaking the investigation, when the aggressor is a bully who has taken good care of the police for his show of apathy. The complaint would go without being registered. When should the police intervene in property disputes and when should he refer the parties to seek for adjudication before civil courts? What type of complaints should be registered as FIR and when could the police receive the petitions with advice to resort to some other agency? When could the police resort to arrest after receiving the complaint and what circumstances would be just, not to indulge in arrest even though a complaint of commission of cognizable offence is made? Recently all these questions came to be raised before the Madras High Court when an application for anticipatory bail was presented by an accused apprehending arrest in a land dispute involving crores of rupees. The Court pulled up the city crime branch police for making pretenses of receiving complaints under the guise of inquiry but not registering cases. The Court noted that enquiry has a predictable course, when the police would initiate a conciliatory poser that would soon degrade to coercive katta panchayat.

What has brought us to this unseemly pass? Many of the decisions of the Supreme Court and the High Courts on the status of complaints and duty of registration of complaints go unnoticed. Dealing with section 154(1) of Cr.P.C. the Supreme Court said in Mohd Yousuff (2006) that registration of FIR involves only the process of entering the substance of information and in Ramesh Kumari (2006) it pointed out that genuineness or credibility of the information is not a condition precedent for registration of a case. In Lallan Choudhary (2006), the Court again said that when a complaint of cognizable offence is made, the police has not option but to register the case. In Upkar Singh(2004), the Court had earlier clarified that while registration of two complaints from the same party on the same occurrence could be bad as making possible improvements and deviation from truths, registration of complaint and counter complaint from rival parties relating to the same incident is not barred, it they would lead to unraveling the truth. In All India Institute of Medical Sciences Employees Union case (1996) and in Aleque Padamsee (2007) the Court has explained the modalities to be adopted as set out in Section 190 read with Section 200 of the Code of Criminal Procedure when the police officials fail to register FIR.

Alongside these pronouncements, see how the courts are approaching the position of a trespasser and what relief he could get in civil courts. As early as 1961, Justice Veerasamy (as he then was) said in Alagi Alamelu Achi that a trespasser in possession cannot be protected by an order of injunction. In 1991, Justice P.S.Mishra (as he then was) said, in the context of a government initative to remove the hutments that had come up along the seashore that even a trespasser is entitled to protection under Article 226 of the Constitution. In 2004, a 3 member Bench of the Supreme Court said that a trespasser in “settled possession” is entitled to protection until evicted by due process of law. You will notice that different branches of law, the police understanding and public perception of what the law is, are pulling in different directions. Perspicuity, an essential attribute of law, is lacking in the present scenario. The High Court has in a recent case, appointed a committee consisting of high ranking police officials to go into these problems of coping with civil disputes through the instrument of police machinery. The report and the court’s decision on the issues would be most significant. Who is a trespasser? What is settled possession? What are Court’s powers? When can police intervene and what is the scope of investigation? Circulate your own views on this subject and sharpen your ears to listen. It is wise not to be distracted by side stories that have germinated from this case.

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