Dokument #1216212
IRB – Immigration and Refugee Board of Canada (Autor)
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).