The following information on the rules and procedures involved in filing First Information Reports (FIRs), charge sheets and arrest warrants, and how these procedures are actually used by police, was provided in 5 October 1998 and 19 October 1998 correspondence from Rajvinder Singh Bains in response to questions from the Research Directorate.

Mr. Bains is a human rights activist and lawyer who has practised in Punjab since 1985, pursuing independent practice at the High Court of Punjab and Haryana at Chandigarh since May 1986. A former technical officer in the Indian navy (1979 to 1982), Rajvinder Bains is the son of former High Court Justice Ajit Singh Bains, who founded the Punjab Human Rights Organisation (PHRO) in 1985. He is a member of both the accounts committee and secretariat of the Committee for Coordination on the Disappearances in Punjab (CCDP). He has been involved with the CCDP since it was established in November 1997, and with the People's Commission on Human Rights Violations in Punjab since it was formed in April 1998. Mr. Bains has presented several cases before the Punjab Human Rights Commission (PHRC). Currently he is representing Paramjit Kaur Khalra, the wife of disappeared human rights activist Jaswant Singh Khalra, in the trial of the police officers accused of Khalra's disappearance and murder. A 12 August 1998 Amnesty International Urgent Action report deemed Mr. Bains, along with several other human rights lawyers and activists, as being at risk of possible detention and torture.

The views expressed in this Response are those of Mr. Bains alone and do not necessarily reflect the views of the PHRO or any of the other human rights groups to which he is connected. The information provided by Mr. Bains could not be corroborated by other sources currently available to the Research Directorate.

According to Mr. Bains, the First Information Report (FIR)1 is the most important step in terms of arrest, because once an FIR has been registered the police have the power to arrest a suspect. The rules state that ordinarily the police should not make an arrest immediately, but in actual practice, once an FIR is registered under a serious provision of law, the police will go ahead and arrest the person. A suspect may remain in police custody for a maximum period of 15 days, after which time he must be turned over to judicial custody, where he will remain until released on bail. If no charge sheet is presented the suspect is entitled to be released on bail after 30 days for minor offences, after 60 days for serious offences and after 90 days for the most serious offences. If a charge sheet2 is presented the accused will remain in judicial custody either until he obtains bail or the trial is completed. The investigation period is unlimited.

The decision on whether to grant bail is usually made after reviewing the FIR, and therefore a misleading or false FIR alleging a serious offence will ensure a suspect's detention for at least 90 days. Once the charge sheet has been presented, however, it is the contents of the charge sheet that become the main grounds for determining whether bail will be granted. Only the trial will reveal whether the allegations in the charge sheet are true and the police witnesses real or imaginary, according to Mr. Bains, who indicated that the suspect can remain in jail, sometimes for years, while the trial "drags on".

An accused person has the right to receive a copy of the charge sheet, which invariably includes the FIR as its opening statement. The police must send a copy of the FIR to the local court as soon as possible, after which time copies normally can be obtained by whoever wants one. A copy of the FIR can be obtained by paying a fee to the court clerk or to a lawyer, who also usually arranges bail. Certified copies can be obtained, but in most cases a photocopy is obtained by paying some "speed money" to the court clerk. The FIR is usually in Punjabi and the handwriting often unreadable. The bail lawyer's main job is to get the FIR translated into English or neatly typed into Punjabi so that bail can be effectively argued.

The cost of obtaining a copy of the FIR varies from lawyer to lawyer and court to court, depending on how recent the FIR is. Old FIRs are difficult to locate from the court room because they are numbered by court case and the police will not provide a copy without a bribe. This bribe could be Rs. 1,000 (Cdn. $36) or more, the exact amount varying from officer to officer.

The police also have some powers of pre-registration enquiry, although recently the courts have taken the position that this is improper. Pre-registration enquiry means the police, when they receive a complaint, can summon a person and do some sort of inquiry to verify the information they have received. They can do this without registering an FIR, and according to Mr. Bains it is a power that is often abused. Typically the police will call in or round up suspects, interrogate or torture them and then register the FIR after the person has recovered from his or her injuries. In this way the person has no visible marks or injuries and is shown to have been legally arrested. Although the power of habeas corpus exists with the High Court to stop such illegalities, the expense of engaging a lawyer and the lack of knowledge of the place of detention often restrict the ability to exercise this power.

Once the charge sheet has been filed, the trial process begins. Prior to this the accused can still be discharged and released. However, if after reviewing the contents of the charge sheet the judge believes the accused may have committed the offence, then he must charge the accused. The judge must consider the charge sheet, and documents attached to it, and if it details an offence, he has no option but to charge the accused. As the law stands now, virtually anybody can be charge-sheeted.

The defence lawyers seldom make elaborate arguments at charge stage because they will already have disclosed the accused's defence, and the prosecution tends to fill gaps or weaknesses in its evidence by filing supplementary charge sheets or tutoring the witnesses, which the law is unable to prevent. And although there are usually sufficient grounds at this stage to challenge the charge, in planted or fabricated cases the trial invariably will follow. In Mr. Bains' experience judges rarely go through the material with any thoroughness at this stage except in highly contested cases.

Mr. Bains stated that it is very common for the police in Punjab to file charge sheets containing fabricated statements from false or non-existent witnesses. These false statements, which are recorded under section 161 of the Code of Criminal Procedure, allow the police to keep on adding new suspects in a case. All of these suspects are liable to arrest. The police know the trial will eventually end in acquittal, but the practice is permitted and no questions are asked as long as the prior approval of higher police officers is obtained. This behaviour is illegal but since the acquittal is due to the faulty statements of the witnesses, there is little chance of catching the guilty policemen. Although the court should call to account the policemen who investigated the case and bring charges against them for involving an innocent person, it seldom does so because it is so overburdened. Judicial officers know the police indulge in this behaviour but generally condone it. This is partly because of overwork-it means one more case for them to dispose of-and the judicial officers would also have to draft the complaint.

Falsely charged persons are usually so relieved at having been acquitted that they almost never file a complaint, and they know the police could easily implicate them in another false case. And if the acquitted person did speak out and the guilty officers were charged, in Mr. Bains' opinion the trial likely would take just as long as the first one and also end in acquittal. It is difficult for the courts to establish cases of false evidence because most cases involve malicious prosecution and the inability of witnesses to support the prosecution's case. The guilty police officers are always careful not to give false testimony. In addition, only the court may file a complaint in a case of false evidence, and no court can prosecute a public servant without the state's permission, which it rarely gives. In Mr. Bains' opinion these police officers could easily be caught if there was an honest investigation or a private complaint of false implication.

Warrants of arrest can be issued against anyone, even if he or she is not in detention or before the court. They can even be issued before the charge sheet is filed. A warrant of arrest is merely a form that mentions the particulars of the accused and the details of the FIR. It is signed by a judge and directed to a particular police officer for execution. Warrants of arrest are kept on the court record and copies can be obtained. Although officially they cost Rs. 5 to 10 (Cdn. $0.18 to $0.36), the actual cost to a trial court lawyer is often Rs. 200 to 500 (Cdn. $7 to $18), the rest being "speed money."

This Response is not, and does not purport to be, conclusive as to the merit of any particular claim to refugee status or asylum.

References

Bains, Rajvinder Singh. Human rights lawyer and member of the Committee for Coordination on Disappearances in Punjab (CCDP), Chandigarh. 19 October 1998. Correspondence.

_____. 5 October 1998. Correspondence.

Desai, M.C. et al. 1984. Princep's Commentaries on the Code of Criminal Procedure (Act No. 2 of 1974). 17th ed. Sardar Patel Marg, Allahabad: Law Publishers.

Nyrop, Richard F. et al. 1975. Area Handbook for India. 3rd ed. Washington, DC: The American University.

Notes

¹. The FIR is the initial claim or complaint written up by police under section 154 of the Code of Criminal Procedure (CPC) when police investigation or action is being demanded. The FIR contains all of the information and versions of events given to the police by the complainant(s). It is the first step in terms of arrest and will trigger any legal process the police might initiate. The FIR is not the result of a police investigation but the initial information, reduced to writing, upon which a decision to carry out an investigation may be based. Information recorded in an FIR is distinct from information received after an investigation has commenced, which is covered by CPC sections 161 and 162 (Desai et al 1984, 516-17). When an FIR is said to have been registered it means a copy has been filed with a judge or magistrate (ibid., 519).