Illustration: Amili Setalvad
On the caste front, too?
A detailed and systematic study undertaken by the Council for Social Justice (CSJ), Ahmedabad, reveals a shocking pattern behind the main reasons for the collapse of the cases filed under the Atrocities Act within Gujarat: utterly negligent police investigation at both the higher and lower levels coupled with a distinctly hostile role played by the public prosecutors.
Valjibhai Patel, secretary, CSJ (who has meticulously documented 400 judgements delivered under this act since April 1, 1995 in the Special Atrocity Courts set up in 16 districts of the state), avers that while the common perception is that the inefficacy of this law is due to false complaints being lodged or compromises between the parties, in actuality it is a complicit State that has rendered the Act toothless.
In over 95 per cent of the cases, acquittals have resulted due to technical lapses by the investigation and prosecution, and in the remaining five per cent, court directives are being flouted by the government. Often while crimes under the IPC against the accused have been proved, offences under the Atrocities Act have not, suggesting a systemic bias against recording and establishing crimes under this law.
The judgements that have been studied are from special courts in the districts of Banaskantha, Vadodara, Surat, Mehsana, Patan, Bharuch, Surendranagar, Ahmedabad, Sabarkantha, Rajkot, Jamnagar, Amreli, Anand, Veraval, Navsari, Godhra, Valsad and Junagadh. As a result of the attitude of the state police and the state public prosecutors, those accused under the Act for criminal acts like murder (for which life imprisonment is the sentence) and rape are being allowed to go scot-free.
Numerous judgements of the special courts set up under the Atrocities Act in Gujarat — which due to lapses in investigation and prosecution, have led to the acquittals of the accused —have passed strictures against the negligence demonstrated by both the police and the public prosecutors and even summoned time-bound ‘action taken’ reports. Often policemen have even resorted to giving false evidence to protect the accused while prosecutors have attempted to mislead the courts by arguing that the provisions of the Atrocities Act are not mandatory.
Under section 4 of the Atrocities Act, "Whoever, being a public servant but not being a member of a Scheduled Caste or a Scheduled Tribe wilfully neglects duties required to be performed by him under this Act, shall be punished with imprisonment for a term which shall not be less than six months but which may extend to one year." In 95 per cent of the judgements studied by the CSJ, courts have passed strictures against errant police officials invoking provisions of section 4 under the Atrocities Act, but the government of Gujarat, instead of taking action against the erring officers, has honoured them with promotions.
Serious negligence on the part of the police
Rule 7(1) and (2) of the Atrocity Rules of 1995 framed under the Act clearly provides that the investigation of an offence under the Act cannot be carried out by an officer below the rank of DySp, who is further bound to submit his report directly to the state director general of police. Moreover, both the state home secretary and the state social welfare secretary with the director of prosecution are meant, every quarter, to review the investigations undertaken under the Act. Despite this clear provision under the law, in 95 per cent of the cases the accused are acquitted merely on the ground that the investigation was carried out by an officer below the rank (DySp) specified under the Act.
Courts have taken very serious note of this fact and have made critical observations for such criminal negligence in several judgements. For instance, in Patan district Special Atrocity Case No. 391/02, paragraph 17, page 10 of the judgement the court states, "If the investigation is not carried out by the competent officer authorised by Rule-7 of the Rules under the Atrocities Act, the case of the complainant can not be proved…. In such circumstances, the investigation of the offence against the accused stands vitiated with the benefit in the favour of accused. In these circumstances the charges under the Atrocities Act framed against the accused are not tenable."
Similarly, in Jamnagar district, Spl. Atrocity Case No. 45/2001, the judgement at page number 16 says, "The investigating officer, DySp Jamnagar Rural was in charge when the incident took place. It appears that in fact his designation was of CPI and merely because he was in charge, the investigation cannot be said to be legal. Otherwise, also, the appointment of the investigating officer must be made by the direct orders of the government….In these circumstances the investigation stands to be illegal. As long as the state government does not appoint any authority to carry out the investigation of the offence and if any other officer investigates the offence, such an investigation cannot be said to be legal.." The order states therefore: "The accused Mahobbatsinh alias Hakuba Gagubha Jadeja is hereby convicted for the offence punishable by section 323 of the Indian Penal code (punishment for the crime of voluntarily causing hurt) and section 135(1) of the BP Act. The said accused is hereby acquitted from the charges of offence punishable by section 3(1) (10) of the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act (the atrocity of "intentionally insults or intimidates with intent to humiliate a member of the SC or ST in any place within public view") and section 324, 504, 506(2) of the Indian Penal Code." The final order states, "Hence the accused was punished with 6 months simple imprisonment and fineand a further imprisonment for 15 days" but escapes the punishment under the Atrocities Act that could extend from six months to 5 years with fine and moreover be classified as a caste crime and not a simple crime.
There are several judgements related to serious offences under this Act, like rape, where the accused, though liable to be convicted, has been acquitted merely because the caste certificate was not placed on record before the court by the investigating officer i.e. the police.
Acquittal due to non-inclusion of caste certificate by the police
A pre-condition for the cognisance of an offence under the Atrocities Act is that the complainant must be a member of a Scheduled Caste or Scheduled Tribe and that the accused must be a member of an upper caste. While investigating the offence, a caste certificate issued to the complainant by a competent authority must be annexed with the complaint and produced by the police before court as supportive evidence. There are several judgements related to serious offences under this Act, like rape, where the accused, though liable to be convicted, has been acquitted merely because the caste certificate was not placed on record before the court by the investigating officer i.e. the police. In many such cases courts have passed severe strictures against the police for their deliberate and wilful negligence in not including a caste certificate thereby rendering the investigation of serious offences under this law handicapped and untenable.
Some observations made by the courts include a judgement of Amreli district, case of rape, Spl. Atrocity Case No. 46/03 , page 23, para 24: "The accused has been charged for the offence under the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act. To establish the offence, the primary responsibility to prove that the complainant-victim is the member of Scheduled Castes community rests with the prosecution. Though the charge sheet indicates that the victim is a member of Scheduled Castes and Scheduled Tribes, it is important to prove this fact. In the present case, the victim is a lady. The prosecution has examined her father, her mother and the investigating officer. However, at no stage the prosecution, by way of cogent evidence that the victim lady was a member of Scheduled Castes and/or Scheduled Tribes community, proves it… Under the provisions of section 3 and 3(1) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, it is incumbent on the part of prosecution to prove that the accused against whom the offence is alleged is not a member of Scheduled Castes or Scheduled Tribes. The prosecution produces no cogent and reliable evidence in this regard and therefore, in such circumstances, there is no other alternative except to acquit the accused of the charges under section 3(1) (11) (12) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act (these are offences related to assault, use of force on a Dalit or Adivasi woman with intent to dishonour or outrage her modesty, being in a social/economic/political position to so exploit an SC or ST woman)…The accused Atul Devjibhai Chauhan is hereby held guilty and convicted for the offence punishable under sections 363 (punishment for kidnapping), 366 (kidnapping and forcing woman into marriage) 376 (punishment for rape) of the Indian Penal Code." Thus, the accused in the above case was convicted under the IPC but acquitted under the Atrocities Act due to police negligence.
Severe strictures against the police
The police have also been hauled up by the courts fo tampering with evidence in many cases under the Act. In these cases, courts have directed the government to take action against erring police officers for tampering with evidence and making false depositions on oath so as to save the upper caste accused. Apart from this, the courts have also directed the government to produce action taken reports against errant policemen within two months. To date, the government has not produced any such action taken report before the court. Instead of punishing the guilty officers, the government has honoured such officers with promotions!
Examples of such disregard of the Atrocities Act by the government of Gujarat include the order delivered in Mehsana district Spl. Atrocity Case No. 16/98, judgement dated January 1, 1999, para 10, wherein the judge states: "The behaviour of Shri Rathod and the method of investigation have been discussed. A copy of this judgement to be sent to the District Superintendent of Police, Mehsana district, with written direction that Shri Maluji Jituji Rathod, Police Sub Inspector, has not undertaken investigation seriously. Necessary enquiry to be made in this regard and its outcome to be reported to this court within two months." With this, the court forwarded a copy of the said judgement to the DSP, Mehsana, on January 8, 1999. By refusing to file an action taken report the Gujarat government has committed contempt of court.
In another judgement from the same district, Spl. Atrocity Case No. 924/2000, an order delivered in a bail application dated November 13, 2003, the court observed, "Now if we look at the complaint itself then accused abused him…by calling him "Dheda". In spite of this, the IO has not considered the provision of the Prevention of Atrocity on scheduled Castes/scheduled Tribes Act. This is a serious thing. It is an attempt to divert the investigation. A copy of this order be forwarded to DySp (SC/ST Cell) Mehsana for necessary action in the matter."
Similarly, the lower courts within Gujarat have passed serious remarks amounting to criticism against the police for criminal negligence in matters relating to the Atrocities Act. In Rajkot district, Spl. Atrocities Case No. 197/97 dated November 22, 1999, at para 89, page 38, the court states that "The Investigating Officer had gone to the village Umrali and had made enquiry with the witnesses and had made notes in this regard. The said notes were torn and destroyed (by him) and thus deprived the accused and this court from appreciating the important piece of evidence. This is very serious…. A very important piece of evidence has been torn, meaning thereby, it has been destroyed. This is a very serious act and speaks volumes for itself… The complainant Shri Girishbhai of village Bandra has stated the facts in detail in his complaint lodged in Taluka police station. However, the responsible police officer has not made any note regarding his complaint. No entry has been made. No explanation has been tendered in this regard….The important aspect is that all the three injured persons were admitted in the morning at 8.45 a.m. where they have been treated. The case of the prosecution is that the complaint of the complainant was received at 9.15 in the morning and thereafter he was sent to hospital. This fact speaks volumes of (police) negligence …in investigation."
In all the three abovementioned cases, theCouncil for Social Justice made written representations to the government demanding action taken reports and legal action against errant policemen under section 4 of the Atrocities Act. To date, in none of the cases has action been taken so far.
Another judgement documented in this extensive study relates to court strictures against the police for making a false statement to help the accused. A judgement delivered in Patan district, Spl. Atrocity Case No. 71/02, para 16, page 10 states, "It appears from the deposition made by the prosecution witness No. 9 in his cross-examination that the facts stated are either inadvertently erroneous or intentionally false statements have been made in order to help the accused. In the judgement rendered in Sessions Case No. 27/03, this court has noted that the police officers of this district are deliberately making false statements in cross-examination. This observation is endorsed by the aforesaid facts."
There are several judgements studied wherein the courts have passed severe strictures against the police and directed the government to take action against erring police officers for tampering with evidence, making false depositions on oath so as to save the upper caste accused and for showing gross negligence in carrying out investigations
Despite a demand made by the CSJ, supported by these judgements, that action be taken under section 4 of the Atrocities Act against these errant officials – including the DSP and other responsible police officers – no action has been taken even after several months.
Under rule 7 of the rules enacted under the Atrocities Act, not only is an officer of the rank of DySp required to investigate, which often does not happen (junior beat or police station officials are deputed, vitiating the rationale behind this provision), but the investigation has to be authorised by special orders/notification of the government. The rationale behind this rule is to ensure that persons of integrity, sensitivity and training handle offences under this Act.
This rule has been flouted in investigation after investigation, inviting severe strictures by the courts. In Jamnagar district, Spl. Atrocities Case No. 61/01, para 4 at page 26 of the order, the court details how neither the investigation by DySp Pavar or PSI Gadhvi were authorised by an order of the government to investigate the offence, concluding that, since … "No such order has been produced on record of the case. Probably these officers are not even aware that they are not authorised to carry out the investigation…Therefore, the entire investigation of the offence itself is illegal. Based on such illegal investigation, no accused can be linked with the offence or held guilty of offence."
Similarly, in Ahmedabad city, Spl. Atrocity Case No. 51/2000, paras 13 and 1 of the judgement at pages 12 and 15 respectively, the court has similarly held that not only has the DySp concerned not carried out the investigation but moreover that the investigation was not specifically notified to him by government order, thus ironically "the accused Ajmalbhai Velabhai Rabari is hereby acquitted and directed to be released….However the accused Ajmalbhai Velabhai Rabari is hereby held guilty under section 235(2) of Criminal Procedure Code for the offence punishable (under) sections 341, 452 and 504(2) of the Indian Penal Code." In the final order the accused was punished with "rigorous imprisonment for a period of 12 months for the offence under section 452 of the Indian Penal Code and further rigorous imprisonment for a period of six months for the offence under section 506(2) of the Indian Penal Code and further, payment of fine of Rs. 500 for the offence under section 341 of the Indian Penal Code. Upon failure to pay the fine, simple imprisonment for a period of 15 days is ordered."
Thereby, ironically, while this judgement holds the accused guilty of crimes under sections 341, IPC – punishment for wrongful restraint; section 452, IPC – house trespass after preparation for hurt, assault or wrongful restraint; section 504(2), IPC – intentional insult with intent to provoke breach of peace, but significantly acquits him of offences under section 3(1)(5) of the Atrocities Act which offences, if proved against him, would make him guilty of not merely preparing for and committing crimes of hurt, assault, wrongful restraint and intentional insult but doing so against a member of the SC or ST, sections of the Indian population who have been dealt systemic denials for centuries.
Those accused of serious offences like murder and rape, which may attract convictions under criminal law, are being acquitted by courts under the Atrocities Act on flimsy and technical grounds such as the fact that the investigation was carried out in violation of statutory provisions, i.e. was conducted by an officer below the rank of DySp or that the prosecution has not produced the caste certificates of victims. Shockingly, though the offence may otherwise be proved, it is treated as not established because of the absence of such technical provisions being met by the police.
In some judgements delivered, the courts have made critical observations on the negligence of the police. In Kheda district, Spl. Atrocity Case No. 39/01 dated May 7, 2004, para 32 at page 23, the court has observed, that while "the accused Khant Kanabhai, resident of Sompura Jilodi, Taluka Virpur is held for the offence under section 323 (punishment for voluntarily causing hurt) of the Indian Penal Code and under section 235(2) of the Code of Criminal Procedure, the accused is directed to undergo rigorous imprisonment for a period of one year and fine of Rs.1000 and upon failure to pay the fine further imprisonment for a period of three months and for the offence under section 504 of the Indian Penal Code, rigorous imprisonment for a period of one year and fine of Rs.1000 and upon failure to pay the fine further imprisonment for a period of three months… the accused is acquitted for the charges under section 3(1)(10) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act."
From the above judgement it is clearly established that though the offence under the Atrocities Act is supported by evidence, i.e. though the offence is proved, the court has no alternative but to acquit the accused merely because of negligence on the part of the police authority. Thus the provision of the Act is violated. This fact has been clearly noted by the court. With this judgement also the Council for Social Justice made a representation to the government demanding action against responsible officers under section 4 of the Act but to date the government has taken no action.
Serious negligence by public prosecutors
The Atrocities Act provides for appointment of special public prosecutors to try cases under the Atrocities Act but the often hostile role played by those appointed by state governments to prosecute cases under this law destroys the case. It has been found that not only do cases often not reach the stage of trial for several years but when the victim/complainant enters the witness box to depose, he does not know who the prosecutor is. The CSJ has studied several judgements in which the courts have passed severe strictures against deliberate attempts by the special public prosecutors to avoid implementing the special provisions under the Act thereby vitiating the prosecution case itself.
Decisions and guidelines issued by the higher judiciary, including the Supreme Court and various high courts, in cases of atrocity under the Atrocities Act, establish that the prosecution needs to prove that the complainant belongs to a Scheduled Caste or Scheduled Tribe and that the accused does not belong to a Scheduled Caste or Scheduled Tribe and that the incident involved is a direct result of caste discrimination resulting in caste-based crimes. All this needs to be established in the special courts by the special public prosecutors through a thorough examination of the accused. The PP is required to produce a caste certificate for the complainant in court, accompanied by the recognised list of Scheduled Castes or Scheduled Tribes, and point out to the court that the accused does not figure in the list of Scheduled Castes or Scheduled Tribes and thus prove that the accused belongs to the upper caste.
Normally, victim complainants hailing from the SCs or STs who approach the Court are from poor and illiterate sections of the rural population, unaided by the PP or the State. Their caste is established by the PP, as is the caste crime itself. An utter lack of commitment to this legislation and lack of political will by state governments to prosecute the atrocities committed under this Act have rendered this legislation meaningless. In a judgement delivered in Patan district, Spl. Atrocities Case No. 375/02, para 10 at page 5, the judges state, "It is held by the Supreme Court in the judgement reported in 2000-SCC-722 that in the cases of offence under Atrocities Act, merely because the victim belonged to the Scheduled Caste and the accused belonged to the class other than the Scheduled Caste, the provisions of the Act can not be made applicable. It must however be proved by the complainant that the victim belonged to the Scheduled Caste and that the incident took place because of the reason that the victim belonged to the Scheduled Caste. If anything is done by way of discrimination or unsociability against the people belonging to the Scheduled Caste, law prohibits it. In view of this provision, in the instant case, it does not appear that the alleged incident took place merely because the complainant belonged to the Scheduled Caste."
Incidentally, the Scheduled Caste Welfare department of the state government, created with the objective of providing social justice to Dalits and Adivasis, has glaring vacancies in key posts making the implementation of social justice measures even more difficult. There are over 300 vacancies in this state department, from the rank of district officer downwards in Gujarat alone.
Archived from Communalism Combat, March 2005 Year 11 No.106, Cover Story 2