James Madison had written, “The accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny.” He ought to know; he was a founding father of the USA and served as the fourth President. This quotation came to my mind upon reading the news report, “Mumbai Police closes chapter proceedings against Arnab”. So what are these chapter proceedings? These proceedings are a clear example of tyranny by the Mumbai Police.
Chapter Case proceedings are initiated under the powers conferred vide Sections 107 to 111 of the Code of Criminal Procedure. Generally a notice is issued to a person U/s. 111 CrPC whereby he is asked to appear before the Executive Magistrate who has issued the notice. The person has to explain why he should not be made to sign a bond of good behavior. If the Executive Magistrate is not satisfied with the answer, the person is asked to execute the bond and produce sureties vouching for his/her good behavior. A fine amount is also decided – following the crime and the person’s financial capability – which the person would have to pay if he violates the conditions set in the bond. So far so good, one may say. It is a laudable initiative, for maintaining peace; thereby negating the Bollywood stereotype that the police always comes in the end – after the deed is done.
The problem lies in the actual work of this section, which proves the biblical saying, “The road to hell is paved with good intentions.” In Mumbai, the Accuser, the Judge & Jury, and the hangman are the same: The Mumbai Police. This concentration of powers continues despite being ultra vires of the Constitution of India; Article 50 enjoins the State to take steps to separate the Judiciary from the Executive in the Public Services of the State. This Article is based on Montesquieu’s doctrine, that one person or body of persons should not exercise all the three powers of the Government viz. legislative, executive, and judiciary.
The Executive Magistrate here is none other than the divisional Assistant Commissioner of Police [ACP], who is also designated as Special Executive Magistrate [SEM]. In Mumbai, one ACP supervises two to three police stations, thus he is a middle-level supervisory officer. If any person falls foul of the government of the day, it becomes very easy for the local politicians to get some Inspector of Police to initiate the proceedings by sending a report to the ACP, and the process starts. Once such proceedings are initiated, the bond is sought for good behavior, which can be confiscated on flimsy grounds by the ACP, and then further proceedings are taken, which can result in externment, i.e. removal of the person from Greater Mumbai, imprisonment, denial of a passport, etc. An appeal lies with the Home Secretary, another Officer of the Executive.
These proceedings were initiated against Arnab since it was alleged that he attempted to communalize two incidents, following which FIRs were registered. Even where the person is acquitted from the FIRs, the chapter proceedings continue. They continued even though the FIR against him was stayed by the Honorable High Court in Arnab’s case. The proceedings are initiated to bypass the due process of law and side-line the judiciary since the Executive imposed the punishment. In the 1990sAppeal, the police had initiated such proceedings against this writer also, although there was no FIR lodged against him.
The roads of Sion Koliwada in Mumbai have been occupied by roadside mechanics who repair vehicles in the middle of the road after having encroached the footpaths with their tools. This results in traffic jams and also noise pollution due to denting and painting of the vehicles. Gas cutters are used to cut metal on the road, causing a fire hazard. Upon complaints by this writer, action was initiated by the Municipal Corporation and Traffic Police, thereby causing loss to entrenched interests. The Sion Police Station got into the act and asked some mechanics to lodge Non-Cognizable complaints against me, based on the which they took up chapter case proceedings by issuing Notice. I met the ACP but found him to be adamant. However, as luck would have it, the senior inspector was transferred and the police dropped the proceedings.
Such misuse is common because Power tends to corrupt and absolute power corrupts absolutely. A teacher’s house or a cycle repairing shop may be sought to be acquired by a builder but they may not be willing to sell out. So what’s the option for the builder? Your friendly neighborhood Mumbai Police! The Builder is facing several FIRs, but he has to lodge a counter-FIR and the police will chip in by initiating chapter proceedings! The only recourse for the poor tenants is the Hon’ble High Court. I quote from the order dated 23-09-11 in Criminal Application No. 5547 of 2010:
“…..The learned counsel for the applicant submits the respondent had developed a grudge in league with the builders to harass the petitioners. She points out petitioner no. 1 is a teacher while petitioner nos. 2 and 3 are conducting cycle repairing business. They have no other criminal record barring one they are facing with the builder/developer. It is seen from the record that the petitioners feel that their valuable rights in the property are being transgressed, encroached upon, and mutilated by the efforts of the builder as a contractor of the building. Consequently, to get redressal of their legitimate rights, applicants had that put logical restraints on the builder’s acts on occasions.
“The action initiated by the learned A.C.P. of the region at the material time generates the impression that to overcome earlier notices and court orders, a subsequent exercise of show notice dated 11.10.2010 and 12.10.2010 have been caused. I do not see any reason to justify said reasons…..”
In November 2014, this rampant misuse reached the High Court once again wherein notice was issued to the then Commissioner of Police, Rakesh Maria. Justice Sadhana Jadhav observed, “This practice is not only deprecated by this court, but the commissioner of police shall take note of the fact that issuance of such notice is illegal and is not under the provisions of the Code of Criminal Procedure, 1973.” This problem is peculiar to cities like Mumbai wherein the ACP has been nominated as SEM. In the districts, this power rests with the Sub-divisional Magistrate, thereby there is some control over the police. Even in Delhi, the ACP does not have such powers hence such proposals are submitted to the SDM who retains some control.
This problem is connected to yet another problem which is lingering despite instructions of the Hon’ble Supreme Court in Prakash Singh v. UoI: that of political control over the police and interference by the local politicians. Considering the revelations about Rs. 100 crore targets, it becomes clear why the politicians are unwilling to let go of the goose which lays golden eggs. In any case, conferring magisterial powers upon the police is that just like trusting the wolf to guard the sheep. But who will bell the cat? The politicians will not renounce that power just like that. Citizens will have to undertake a campaign to secure accountability. This is where Arnab comes in: he needs to expose this misuse of power and the judiciary needs to be moved to ensure separation of powers as enshrined in the Constitution of India.
Author: Priyesh Shah (Bheda)
DISCLAIMER: This article reflects author’s view point. Goa Chronicle may or may not subscribe to views of the author