Law in Motion – 6 - Eastern Mirror
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Views & Reviews

Law in Motion – 6

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By EMN Updated: Aug 27, 2020 12:31 am
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Rights and Duties of Citizens

Civilians/general public encounters numerous occasions and/or circumstances where there is a dilemma. Some such enquiries are:

(1) Whether an act/omission is a crime/offence or not? How to report?

(2) If it is a crime, how can I prevent it?

(3) If it is a crime, what can I do?

(4) If I don’t act, what can be the consequences for me?

I keep receiving queries from people seeking advice and clarity. Therefore, it is essential that some of the issues are addressed. Therefore some basic clarity is required.

(1) Whether an act/omission is a crime/offence or not? How to report?

When in doubt about a suspicious act or activity or someone failing to act when he/she should have acted, reporting to police should be the cardinal principal.

Evolution of mechanisms of reporting to police have resulted in any or all of the following methods of reporting:

(a) written means (handwritten);

(b) Electronic means – email, whatsapp, or facebook/messenger or even by twitter on the official addresses;

(c) Oral/verbal report to a police station or outpost;

(d) Reporting to the ‘Police Control room’ (PCR) or Distress Calls to Police;

(e) Court Complaints – cases referred by Courts based on complaints by ‘persons’;

(f) Complaints received from Senior Officers – SP/DIG/IGP or DGP office;

(g) Complaints received from NHRC/SHRC, Women Commission/Minorities Commission/SC-ST Commission etc.;

(h) Complaints registered by police suo-moto;

(i) Complaints received from Executive Magistrates like DC-DM, ADC-ADM, SDO-SDM etc;

Therefore, the citizens, when in doubt can report to any one of the above channels/offices/authorities.

Whenever a complaint is made, it is advisable to either keep a copy of the receipt for reference or obtain a receipt from the concerned office. In case of police station, a GDE number may be taken while in case of any office the Diary number or in Case of call to PCR, the complaint or reference number. Sometimes, the systems may not be geared up to give receipts due to problems of manpower or logistics but if citizens start asking for receipts, slowly, the systems will start taking shape and resources will start getting allocated.

2. If it is a crime, how can I prevent it?

When in doubt report to police being the basic principal, the first corollary is that a report to the police is the first preventive measure which can be taken.

There are a large number of cases where police takes preventive and investigative action based on “source information”. These could be regular or paid sources or informers or casual informers or even well-minded individuals who may want action to be taken without their names getting disclosed or recorded.

Preventive action by police on source information depends on the pro-activeness of the police officials and statistical targets being fixed and more importantly the nature of the relation and trust between the ‘source’ and police. If there is adequate trust and sincerity, the police officials can find multiple methods to ‘protect the identity’ of the source.

There are two legal provisions which could be useful – privileged communications and whistle-blower laws.

Section 125 Indian Evidence Act Information as to commission of offences.

No Magistrate or Police officer shall be compelled to say whence he got any information as to the commission of any offence, and no Revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue.

This section clearly protects the communication between a source and a magistrate or a police officer. However, sometimes this section is wrongly interpreted by police officers as giving them ‘absolute privilege and immunity in secrecy’.

Actually what is prohibited is ‘public disclosure’ i.e., disclosure of the information in any manner which may jeopardise the safety and security of the source e.g. by disclosure to media or other authorities or even courts (where all records are public), not to other senior or supervisory officers. ‘Privileged communication’ cannot conceivably be used to misuse authority in secrecy.

The other legal provision which provides protection to sources is the whistle-blowers protection law. Although it has limited applicability – establishing a mechanism to receive complaints relating to disclosure on any allegation of corruption or wilful misuse of power or wilful misuse of discretion against any public servant and to inquire or cause an inquiry into such disclosure and to provide adequate safeguards against victimisation of the person making such complaints.

Whistle Blowers Protection Act, 2014, Section 3:

(c) “complainant” means any person who makes a complaint relating to disclosure under this Act;

(d) “disclosure” means a complaint relating to,

(i) an attempt to commit or commission of an offence under the Prevention of Corruption Act, 1988(49 of 1988);

(ii) wilful misuse of power or wilful misuse of discretion by virtue of which demonstrable loss is caused to the Government or demonstrable wrongful gain accrues to the public servant or to any third party;

(iii) attempt to commit or commission of a criminal offence by a public servant, made in writing or by electronic mail or electronic mail message, against the public servant and includes public interest disclosure referred to in sub-section (2) of section 4;

Law provides enough protection to a complainant who wants to report to the police or a magistrate. Public and civilians should fearlessly try and report to the police and police officers should build good contacts with the public. The relation is symbiotic, not one way.

Police station records and manuals/instructions could provide adequate safeguards and procedures for dealing with source information and sources. Sometimes there are elaborate provisions how source records are to be maintained at police stations. Sources should be ‘handled’ by the officers posted at the police stations and are ‘not transferable’ normally. This is done to ensure continuity.

3. If it is a crime, what can I do? – Duties of Public

Report is the first thing to can help prevent crime, or its investigation and/or  bringing the offender to book.

The CrPC provides for the following obligations/duties of civilians:

Section 37. Public when to assist Magistrates and police.

Every person is bound to assist a Magistrate or police officer reasonably demanding his aid-

(a) in the taking or preventing the escape of any other person whom such Magistrate or police officer is authorised to arrest; or

(b) in the prevention or suppression of a breach of the peace; or

(c) in the prevention of any injury attempted to be committed to any railway, canal, telegraph or public property.

This empowers public to act not only when a magistrate or police officer expressly orders or authorises or requests assistance in arrest. This provision is very vast in meaning because police officers are authorised to arrest in ‘all cognisable cases’ while magistrates can authorise arrest in the rest. Therefore, in almost all cases where a magistrate or police requests/orders for help, public is bound to help. Refusal to help can be an offence too.

Section 38. Aid to person, other than police officer, executing, warrant.

When a warrant is directed to a person other than a police officer, any other person may aid in the execution of such warrant, if the person to whom the warrant is directed be near at hand and acting in the execution of the warrant.

There is a degree of discretion here, but, usually, the assistance is rendered by public.

4. If I don’t act, what can be the consequences for me? The DUTIES

Section 39 of CrPC Public to give information of certain offences.

(1) Every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code, (45 of 1860 ), namely:-

• Offences against the State;

• Offences against the public tranquillity;

• Offences relating to illegal gratification – bribes;

• Offences relating to adulteration of food and drugs, etc.;

• Offences affecting life – Murder, Culpable Homicide etc;

• Offence relating to kidnapping for ransom, etc.;

• Offence of theft after preparation made for causing death, hurt or restraint in order to the committing of the theft);

• Offences of robbery and dacoity;

• Offence relating to criminal breach of trust by public servant, etc.;

• Offences of mischief against property;

• Office of house- trespass;

• Offences of lurking house- trespass; and

• Offences relating to currency notes and bank notes, shall, in the absence of any reasonable excuse, ……….. forthwith give information to the nearest Magistrate or police officer of such commission or intention.

Therefore there is a duty on public to inform the nearest magistrate or police about intention of any other person to commit offences.

Failure to inform police is liable to be interpreted as ‘abetment or conspiracy’ depending upon the circumstances of each case and the degree of involvement or knowledge of the persons who are aware of the intention or design to commit the offences.

The same logic applies to other offences under Local or Special Laws also. Therefore, every member of the public is duty-bound to inform the police/magistrate about the intentions of any other person to commit offences.

Rupin Sharma
rupinsharma@gmail.com

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By EMN Updated: Aug 27, 2020 12:31:38 am