Saturday, 25 October 2014

Implication of submission of final report by police in offence under S.498A of IPC and SC/ST Atrocity Act

The failure by the police to file a First Information Report is the subject of much debate but the Final Report by which a case is closed has received scant attention.This article reflects on the findings  under Section 498A of the Indian Penal Code and the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 The police's differential stance on these two laws has major implications in terms of justice delivery.Popular perception understandably associates justice with the courts. The much quoted Bollywood dialogue tarikh pe tarikh (date upon date) depicts the endless delay of justice in the courts, but nevertheless portrays the court as the dispenser of justice. However, in reality, justice at the first instance is much more beholden to what the police say. Therefore, justifiably, there is a concern about the refusal or delay in filing the First Information Report (FIR). The televison serial FIR is symbolic of people’s awareness of this first step in the justice system which sets the process in motion. Two important indicators discussed in the academic as well as the popular discourse on justice are “incidence of crime” and “conviction rate”. However, both these discourses do not focus much on the Final Report (FR) which is truly the first-line of justice/injustice delivery. It is almost a verdict by the police that the case does not deserve to go to the court. If oppression has indeed taken place, such a verdict by the police has serious implications for the delivery of justice. Not much public consternation is witnessed when a sizeable chunk of cases, sometimes amounting to 50% in the case of the Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act, 1989 (henceforth the SC/ST Act) and 498A of the Indian Penal Code (IPC) do not go to court. They result in the FR and are closed.

When a FIR is lodged, the police investigate and send it to the court (charge sheet) or close it because of mistakes of fact or law under Section 173 of the IPC. Theoretically, the superintendent of police (SP) sees the FIR before it is submitted to the court, the court is supposed to inform the complainant, and the complainant has the option of a protest petition if s/he is not satisfied with the investigation. However both the SP and the court, with their heavy workload, may not have so much time to take the preventive action of scrutinising the FIRs in detail from the point of view of law and fact before sanctioning it. That leaves a protest petition by the complainant as the only redress against a wrongful FR. But if the complainant is poor, illiterate and powerless before the social and politically powerful upper castes, how can s/he file a protest petition? Though s/he is supposed to know about the fate of his/her case, the information can always be stopped midway. Just like the dividend cheque of small shareholders which never seems to reach them or reaches very late, the notice may reach very late or be seized en route. It is the first-line/front line of justice/injustice. The complainant has two other options apart from the police station to lodge a FIR – the SP office and the court. But the FIR is solely based on police investigation. Though the judiciary is not bound to accept the FIR, it cannot appropriate the investigative function of the police. Therefore, the FIR which is based on police investigation is very important.
Sociologically, women and the members of the scheduled castes (SC)/scheduled tribes (ST) are considered to be part of the oppressed. Section 498A was inserted into the IPC in 1983 to provide a legal measure against domestic violence (The Centre for Women Studies undated). The SC/ST Act, was enacted specifically as a legal redress mechanism to prevent atrocities motivated by caste (Saxena 2002). Periodically there is an uproar about the injustice due to the refusal or delay in filing a FIR and the very low rate of conviction in court under these laws. However, there is not as much focus in the popular and academic discourse on the large number of cases getting closed (FR) and not going to court. This is what the National Commission for Scheduled Castes (2004-05: 239) said:
the central government and the state government should ensure that the underlying reasons for ending up the investigations in Final Report as acquittal of the accused is quite high in the states of Andhra Pradesh, Bihar, Rajasthan and UP, where maximum cases are registered under PCR and PoA Act, needs to be studied in depth.
There were seven states in 2012 where more than 40% cases under the SC/ST Act resulted in either “false”1 or some other category of the FR.2 There were four states in 2012 where between 40% and 67% cases and eight states where between 20% and 40% cases under the Section 498A of the IPC resulted in either “false” or some other category of the FR out of the total cases investigated (, viewed on 9 April 2014).
Generally, the FR is also identified with “false” cases though it is one of the categories among others like “mistake of fact”, “civil nature”, etc. Occasionally, even the court expresses concern about the misuse of Section 498A and the SC/ST Act though one can argue that everything which has a “use” can also be misused. In this context, it becomes necessary to look at the FIRs.

Type of Final Report
The particular category under which a FIR is labelled reflects the differential stance of the police towards 498A and the SC/ST Act. While almost all the FIRs under 498A are galat fahmi (wrong impression; legally “mistake of fact”), the overwhelming category of FIRs under the SC/ST Act is “false”. While “mistake of fact” does not invite any legal repercussions, “false” invites Sections 182 and 211 of the IPC. However, these sections are recommended in very few FIRs. This could be due to the police not wanting to take on additional burden. There is a thin chance of success as the ex-complainant becomes the accused and avails of the “benefit of doubt”. Falsity has to be proved beyond reasonable doubt. Nevertheless, using the label “false” and still not invoking Sections 182 and 211 of the IPC reflects the hostile attitude of the police towards the victims under the SC/ST Act. What could be the reason that the police predominantly label the FRs under the SC/ST Act as false while they could as well have labelled them mistake of fact like the FRs under Section 498A? The reason could very well be caste. While 498A is not caste specific, the SC/ST Act is especially meant for the lowest of castes.
Delay in Reporting and Veracity of the Case: Courts count the delay in reporting in hours and take a serious view if it is in days. While a delay of a few days in reporting is construed as lack of veracity with respect to the SC/ST Act, the same is not the situation in regard to complaints under Section 498A IPC even when reported after months or in some cases, years. Rarely will women approach the police just days after marriage. If the woman reports harassment after months or years, it is understood that she has done so in an attempt to save her marriage and hoping that things would improve. But this is not the view taken by investigating officers when preparing the FRs under the SC/ST Act. It is not assumed that the victims might not have reported promptly fearing damage to their social lives and not wanting to antagonise the powerful upper castes.
Public-Private Dichotomy and the Different Evidence Standard: While Section 498A deals with the oppression in the “private sphere”, the SC/ST Act is oriented towards the public sphere. The insult should have taken place “within public view”. What constitutes the public? Is it only spatial? That the “personal is political” is accepted with respect to Section 498A but not with that to the SC/ST Act. It does not address the cumulative humiliation and mental agony that the SC/ST victim suffers day after day. This public-private dichotomy creates a special problem for them. The police apply a contradictory evidential standard. While relatives are understandably considered as valid witnesses in the 498A cases, even community members are considered as “interested” or biased witnesses under the SC/ST Act complaints. Sometimes the FIR rests on the premise that all the witnesses were either relatives of the complainant or from the same community and are thereby “interested” parties. Though the law does not say that being a community member is tantamount to being an “interested” witness, the police construction of this theory depicts their unfriendly attitude and a mechanical investigative approach. They do not follow the “case to case” approach of the court which assumes that each case is unique.
Reconciliation: Both the laws are non-compoundable – the complainant cannot play a role in closing the cases. The justification in almost all the FRs under Section 498A rests on the complainant’s purported desire for compromise (reconciliation) presumably to save her family life, keeping the children in mind or because of her economic condition. The police almost seem to play a persuasive role in such situations. They are supposed to first try the reconciliation (legally, counselling) route before proceeding further in the 498A cases. The police legally categorise a FIR under Section 498A containing compromise as a “mistake of fact”. Interestingly, about half such FIRs under the SC/ST Act are categorised as “false” though they can very well be categorised as “mistake of fact” and save the complainant from possible legal sanction. The police even apply Sections 182 and 211 of the IPC for “lodging false cases” in some instances. This is an excerpt (translated from the Hindi) from an FR.
(6) the matter is that complainant Modaram and his father Dayaram presented a jointly written rajinama wherein it was written that rajinamahas been effected between both parties and do not want any further legal action. In this way this case was registered falsely by depicting imaginary facts by complainant Modaram taking help of lawyers to harass Mahesh Kumar and his family. This case is found totally false.
The issue of rajinama brings out the relation between the society and law. While the victim can take 498A to its logical conclusion by being prepared to walk out of the marriage, this is difficult in the SC/ST Act case as the victim has to continue living in the village or community. Members of the SC/ST are dependent on the upper castes socially, politically and economically. Many a times this could be the reason that the victims enter into rajinama.
False Cases: Occasionally, even the judiciary has expressed apprehensions and warned about the misuse of Section 498A and the SC/ST Act. The general discourse among the upper castes and men is that these laws are largely misused. However the reality is a little different. The words “health (whether mental or physical)” in Section 498A clearly imply that mental/psychological violence is well within the ambit of the law. Many acts can be construed as violent in the domestic sphere. For example, taunts (taane marna). Therefore when a woman files a case under Section 498A months after the marriage has taken place, it is nearly impossible to say that no psychological violence could have happened as the definition of psychological violence rests with her and the scope of psychological violence is vast. The Supreme Court has observed that
…mental cruelty varies from person to person depending on the intensity or sensitivity and the degree of courage or endurance to withstand such mental cruelty (Kothari 2005: 4,845).
However, sometimes the ulterior motive overrides any supposed psychological violence. A few FIRs point out that it is a property issue or material interest that can give rise to the misuse of Section 498A. However, often, the wife acts only as a proxy for her husband who wants to gain materially from his father or brother. For example, according to one FIR, the complainant, her father and her husband jointly defrauded the complainant’s father-in-law of his land. The latter lodged a complaint in the Tuni police station (name changed). The woman’s complaint was in retaliation.
While property issues can result in the misuse of Section 498A, many a times the use of members of the SC/ST as proxy by the upper caste to settle score amongst themselves can result in the misuse of the SC/ST Act. The SC/ST members are often dependent on the upper castes for their livelihood and they prefer to fall in line. Nearly 10% of the FIRs studied mention that upper-caste persons had cajoled and coerced a dependent SC/ST member to file a complaint against another upper-caste member in order to settle scores. The following is a translated excerpt from an FR.
The investigations found that complainant Gajaram did not accompany Mahendra Singh in the tractor on the day of the incident. Lawyer Mahendra Singh got Gajaram to file a false case under the SC/ST Act to take revenge for the altercation with Kaluram Dewasi on account of his autorickshaw creating obstacle for his (Mahendra Singh’s) tractor. Kaluram reiterated the same when questioned. The matter is found to be totally false and without any basis after complete investigation.
Interestingly, no FIRs among the ones studied recommended that Sections 182 and 211 of the IPC should be applied against the upper-caste abettor in spite of concluding that he was the instigator (legally abetted). This too shows the caste bias among the investigation officers.
The prevailing discourse is that women and members of the SC/ST misuse Section 498A and the SC/ST Act, respectively. This discourse refuses to look at the possibility that men and members of the upper castes can misuse these laws by using women and SC/ST members as proxies. There is an urgent need to correct this misconception.
1 False is a subcategory of final report, for example “Type of Final Report Unoccurred” in the studied state are following- “false”, “mistake of fact”, “mistake of law”, “non-cognisable”, “civil nature”.
2 The percentage is derived from the ratio of total “Final Report submitted” plus “declared false” out of total of “charge sheeted”, “declared false” and “final report submitted”. The percentage is not derived from the total of current registered and previous year pending as many also remain pending at the end of the year. So the total of charge sheeted, declared false, and final report submitted represents the total number of cases investigated in a year.
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