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Did Justice Khandeparkar go overboard?

Whether the order passed on 8th August by retired Justice R.M.S Khandeparkar as Chairman of the Goa State Police Complaints Authority against Police Inspector Vishwesh Karpe is absolutely illegal and bad in law is being debated in legal circles and amongst the members of the public. A perusal of the 41 page order in my view, is clearly unstainable. The order is, improper and invalid, besides discloses non application of mind to the bounds of jurisdiction of the authority. Genesis of the matter commences with a complaint filed with the State Police Complaints Authority by Jowett D’Souza contending that he had earlier filed a complaint with the Agacaim Police Station, seeking registration of a First information Report (FIR) in view of newspaper reports pertaining to the alleged custodial beating of Cipriano Fernandes at the Panaji police station alleging that Vishwesh Karpe who was then the Police Inspector at Agacaim police station had failed to register the FIR.  

Justice Khandeparkar while deciding on the complaint filed by Jowett D’Souza held that Police Inspector Vishwesh Karpe was guilty of failure to record the FIR which amounted to indiscipline, and directed appropriate disciplinary proceedings against Vishwesh Karpe (though this direction has been suspended for an year subject to no involvement in any misconduct during this period, and automatic revocation thereafter in the event of no such misconduct). Vishwesh Karpe was further directed to perform social service by educating the members of ten different village Panchayats on the complaint disposal procedure of the State Police Complaints Authority.

Vishwesh Karpe in his  reply had contended that the custodial beating being alleged to having taken place at Panaji police station, the FIR could not be registered at Agacaim police station and that the enquiry into the custodial death had been initiated both by the Sub Divisional Magistrate (SDM) Panaji and the Sub Divisional Police Officer (SDPO) Bicholim, and that he had acted in good faith in accordance with instructions from  the Director of  Prosecution and also his superiors, and that before registration of an FIR a preliminary enquiry had to be  undertaken, by which time the FIR came to be registered at  the Crime Branch.  

The State Police Complaints Authority was constituted by the State Govt, by notification published in the Official Gazette dated 19/4/07, pursuant to the directions of the Supreme Court, as a multi member body consisting of a Chairman and three members. However, all the members of the then constituted authority since resigned and the Govt then only appointed Justice Khandeparkar as the new Chairman vide notification dated 28

th March 2013 but with no other members. The members having not been appointed, it is respectfully submitted that Justice Khandeparkar could not function as a one man actor in the muti-member body.  The order passed by him is thus illegal and a nullity in the absence of appointment of its members, as the Chairman could not, on his own, decide the complaints filed before it. As the notification provides that the State Police Complaints Authority would be a multi member authority so the order passed by the Justice Khandeparkar as Chairman alone in the absence of appointment of any member to the Authority is therefore an usurpation of power of the Authority by its Chairman and is entirely without jurisdiction.

The order passed being illegal it should be challenged by Vishwesh Karpe not merely to undo the injustice done to him but for the sake that law has to prevail. Anticipating retribution by the government Vishwesh Karpe may decide to bear with the illegality of the order and not appeal.

But can we allow such a patently bad order to go unchecked. The Bombay High Court at Goa could take suo motu cognizance and undo the illegality. And of course Justice R.M.S Khandeparkar could himself find a way to acknowledge the error and set the record right. If he shows that magnamity he would be remembered for the right reason that Justice was placed back on track.

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