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From: AHRC Urgent Appeals <listadmin@xxxxxxxxxx>
Date: 22 February 2012 15:06
Subject: INDIA: Police demand bribes to stop torture in West Bengal
To: masumindia@xxxxxxxxx


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ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEALS PROGRAMME

Urgent Appeal Case: AHRC-UAC-030-2012

<http://www.urgentappeals.net/support.php?ua=AHRC-UAC-030-2012>

22 February 2012
-----------------------------------
INDIA: Police demand bribes to stop torture in West Bengal

ISSUES: Torture; corruption; impunity; rule of law
-----------------------------------

Dear friends,

*The Asian Human Rights Commission (AHRC) has received information from
Banglar Manabadhikar Suraksha Mancha (MASUM) concerning the case of
custodial torture and fabrication of a false case against two persons by
the officers from Baduria and Basirhat police stations. It is alleged that
the victims in the case now face a fabricated charge for possession of
cannabis and are detained at the Dum Dum Central Correctional Home in West
Bengal. It is reported that one of the police officers involved in the
incident has demanded Rs. 3000.00 as bribe from the father of one of the
victims to stop torturing the victims in custody.*

*CASE NARRATIVE:*

A fact-finding undertaken by MASUM concerning the case has revealed the
following details. On 29 December 2011 at about 2 am a team of police
officers, reportedly from Baduria and Basirhat police stations, raided the
houses of the victims at night. The police assaulted the victims at their
home and later arrested them. The officers did not offer any reason
whatsoever for the search or arrest. The police complied with no mandatory
procedures at the time of the search and arrest and no memo of arrest was
issued. Neither did the officer inform the detainees or their relatives
where the victims would be taken to at the time of arrest.

The victims in the case are Mr. Rajak Mondal and Mr.Fajular Mondal, both
residents of Srikati village, North 24 Parganas district, West Bengal.

The police reportedly later registered a fabricated case against the
victims accusing them that the police had arrested them on 31 December 2011
from Moylakhola bus stand and that they had 6.700 kilograms of cannabis in
their possession. The family of the victims alleges that this is a false
case. They also claim that the illegal search, arrest, fabrication of the
false case and detention is due to political revenge to detain the victims
for a prolonged period of time. Illegal possession of narcotic and
psychotropic substances in India is a serious offense in which obtaining
pre-trial bail is extremely difficult.

In the meanwhile it is also alleged that police officer Mr. Sanjoybabu has
demanded Rs. 3000.00 as bribe to be paid to the officer and that should the
family fail to make the payment the victims would be further assaulted in
custody. Fearing for the safety of the victims, Mr. Rashid Mondal, father
of Rajak paid the bribe through one Mr. Sahabab Mondal who reportedly works
as an informer to the local police. Sahabab had reportedly informed Rashid
that the officer, after accepting the bribe, had agreed to stop torturing
Rajak.

Days after the arrest the families of the victims were informed that the
victims are charged with offences punishable under the provisions of the
Narcotic Drugs and Psychotropic Substances Act, 1985. The allegedly false
case registered against the victims as Basirhat police station case, crime
number 643/2011, is under Section 20 (b) (i) of the Act. It is revealed
that even though the arrest was made on 29 December, the victims were
produced before a Magistrate only on 1 January 2012, which violates the
mandate in law that requires the police to produce an arrested person
before a judicial officer within 24 hours from the time of arrest. There
are also allegations that the victims were tortured while they were in
custody. At the moment the victims are detailed at Dum Central Correctional
Home, in West Bengal as under trial prisoners.

*ADDITIONAL INFORMATION:*

The practice of torture is widespread in India. Unchallenged and unopposed,
it has become a normal and legitimate practice for the law enforcement
agencies in the country. Torture in custody is reported regularly in India
and the instances of custodial torture and other forms of violence is at an
alarming rate in India. Reports allege that between 2001-10 more than
14,231 persons have died in police and judicial custody in the country.
This means that during the past ten years on an average 4 persons dies
every day while in custody.

In a democratic society, the role of the police is to protect the rights of
the citizens. However, in India it is well known that the police
systematically abuse their authority and employ custodial torture as part
of their investigation and fabricates false cases against persons as they
wish. The poor, the deprived, women and children and political activists
are mostly the victims of police violence.

The barbarity of incarceration is validated by the popular
retributive-deterrent philosophy, which is the current sentencing norm in
many criminal jurisdictions and India is no exception to this. Fabrication
of false cases, custodial violence, including torture and death in
police/judicial custody strikes a blow at the rule of law, which demands
that the powers of the executive should not only derived from law but also
that the same should be limited by law. In this scenario, the lacking of a
proper law that criminalises torture creates a congenial environment for
the law enforcement agencies to continue with their criminal acts with
impunity.

Section 211 of the Indian Penal Code 1860 mandates punishment for
fabricating false charges of offences made with intent to injure the
victim. Whoever with intent to cause injury to any person, institutes or
causes to be instituted any criminal proceedings against that person or
falsely charges any person with having committed an offence, knowing that
there is no just or lawful ground or such proceeding or charge against that
person shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine or with both; and if such
criminal proceeding be instituted on a false charge of an offence
punishable with death, imprisonment for life, or imprisonment for seven
years or upwards, shall be punishable with imprisonment of either
description for a term which may extend to seven years, and shall also be
liable to fine.

Section 120B(1) of the code mandates punishment for criminal conspiracy:
whoever is a party to criminal conspiracy to commit an offence punishable
with death, imprisonment for life or rigorous imprisonment for a term of
two years or upwards, shall where no express provision is made in this code
for the punishment of such conspiracy, be punished in the same manner as if
he had abetted such offence.

Section 384 of the code mandates punishment for extortion that whoever
commits extortion shall be punished with imprisonment for a term, which may
extend to three years or with fine or with both.

Section 458 of code mandates punishment for lurking house trespass or house
breaking by night after preparation for hurt, assault, or wrongful
restraint - whoever commits lurking house by night or house breaking by
night having made preparation for causing hurt to any person or for
assaulting any person, or for wrongfully restraining any person, or for
putting any person in fear of hurt, or assault, or wrongful restraint,
shall be punished with imprisonment for life either description for a term
which may extend to fourteen years and shall also be liable to fine.

Section 326 of the Code mandates punishment by way of imprisonment for a
term of ten years to a person who voluntarily causes hurt by dangerous
weapons or means.

Section 34 of the code mandates: acts done by several persons in
furtherance of common intention that whenever several persons in
furtherance of do a criminal act the common intention of the all each of
such person is liable for that act in the same manner as if it were done by
him alone.

Section 13(1)(d)(i) of The Prevention of corruption Act, 1988 defines that
while holding the office as a public servant, obtains for any person any
valuable thing or pecuniary advantage without any public interest is said
to be commit the offence of criminal misconduct.

Section 13(2) of the Act mandates: any public servant who commits criminal
misconduct shall be punishable with imprisonment for a term which shall not
be less than one year but which may extend to seven years and shall also be
liable to fine.

Article 21of the Constitution of India mandates: No person shall be
deprived of his life or personal liberty except according to procedure
established by law.

Article 39A of the Constitution of India mandates Equal justice and free
legal aid -The state shall secure that the operation of the legal system
promotes justice, on a basis of equal opportunity, and shall in particular
provide free legal aid by suitable legislations or schemes or in any other
way, to ensure that opportunities for securing justice are not denied to
any citizen by reason of economic or other disabilities.

Under section 18(3) of the protection of Human Rights Act, 1993 the
national human rights commission has amble power to advance cause of
compensatory justice to the victims of torture.

Article 5 of the Universal Declaration of Human Rights (UDHR) incorporated
the right to protection against torture and the same has been sought to be
achieved through declaration of the Fifth United Nations Congress held in
1975. UN Convention against torture provides for redress and compensation
to the victim. Article 14 of the convention categorically emphasizes that
every state party to the convention must ensure that the tortured victim is
provided fair and adequate compensation and rehabilitation. The right to be
free from arbitrary detention is a fundamental right. Even though the India
has not rectified the convention, India torture is a subject of ius cojens
that mandates the state to ensure that the torture is prevented in all
jurisdictions.

The clear case of the prohibition against torture was delivered by the
supreme court of India in Sunil Batra vs. Delhi Administration reported in
1978 (4) Supreme Court Cases 494. The Supreme Court did not find itself
handicapped by the absence of specific provisions against torture in the
constitution and gathered support from Article 14 and 19 in holding against
the permissibility of torture vis-à-vis persons suspected and accused of
crime. At this juncture the prevention of Torture Bill 2010 becomes
relevant. The mandatory requirements prescribed in the code of criminal
procedure for arrest and also the police did not comply the directives
issued by the Supreme Court in the D. K. Basu case in this case.

Khatri vs. State of Bihar reported in 1981 All India Reporter (Supreme
Court) p. 928 is an example of how cruel and in human treatment to the
prisoners insolates the sprit of constitution and human value as well as
Article 21 as far as persons in custody are concerned. The court had held
that these rights are available even for prisoners.

In A. Nallassivan vs. State of Tamil Nadu & others reported in 1995
Criminal Law Journal 2754 (Madras) 90 women and 28 children from a village
were detained in the office of forest range officer for a night. The court
held the detention is illegal, offending fundamental rights and directed
enquiry by the Central Bureau of Investigation (CBI) India. The court
further added that if a police officer acted contrary to the proviso to
Section 160(1)of the code of criminal procedure, such deviation should be
reason for prompt punishment, since the policemen may not become a law unto
themselves while expecting others to obey the law.

The supreme court of India in Aravinder Singh Bagga vs. State of Utter
Pradesh reported in All India Reporter 1994 laid down that the state shall
pay compensation to all persons illegally detained and humiliated for no
fault of theirs. In this case court discussed the matters fabrication,
illegal arrest, etc.and awarded compensation of Rs.10000 each to two
victims and an amount of Rs. 5000 to another tortured victim.

The victims in this case are still in prison and denied of bail, while bail
is the rule and committal to jail an exception. In the words of Justice
V.R. Krishna Iyar "…the issue is one of liberty, justice, public safety,
and burden of public treasury all of which insist that a developed
jurisprudence of bail is integral to a socially sensitized judicial
process." The Supreme Court of India in Moti Ram vs. State of MP Supreme
Court Cases p. 47, held that the consequences of pretrial detention are
grave. Defendants presumed innocent are subjected to psychological and
physical deprivation in life during their time in jail. Conditions during
pretrial detention in India are sometimes worse than those imposed upon
convicted defendants. The jailed defendants loose their job, if the person
has one, and is prevented from contributing to the preparation of his
defence. Equally important, is the burden of rescuing the person from
detention falls heavily on innocent members of his family.

Had the police in West Bengal been operating in compliance with the law,
incidents as reported in this case would not have happened. It shows that
discipline and commitment to duty is not ensured within the rank and file
in the force. Violence by the police against the poor and other forms of
corruption and crimes committed by the police with impunity is a threat to
the the rule of law. Such a force is a threat to the entire country.

*SUGGESTED ACTION:*
Please write to the authorities listed below requesting their urgent
intervention in this case. The AHRC is also writing a separate letter to
the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment calling for an intervention in this case.

To support this appeal, please click here:
<http://www.urgentappeals.net/support.php?ua=AHRC-UAC-030-2012>

*SAMPLE LETTER:*

Dear __________

*INDIA: Kindly investigate the case of custodial Torture and fabrication of
false case by the West Bengal State*

*Names of the victims:*
1. Mr. Rajak Mondal, son of Mr.Rasheed Mondal aged about 29 residing at
Srikati village, North 24 Parganas district, West Bengal
2. Mr. Fajular Mondal son of Mr. Abdar Mondal residing at Srikati village
North 24 Parganas district, West Bengal
*Alleged perpetrators:* The inspector and other police officers of Baduria
and Basirhat police stations serving on duty on 29 December 2011
*Date of incident:* 29 December 2011
*Place of incident:* North 24 Parganas district, West Bengal

I am writing to express concern regarding a case of custodial torture and
fabrication of a false case against two persons by the officers from
Baduria and Basirhat police stations. It is alleged that the victims in the
case now face a fabricated charge for possession of cannabis and are
detained at the Dum Dum Central Correctional Home in West Bengal. It is
reported that one of the police officers involved in the incident has
demanded Rs. 3000.00 as bribe from the father of one of the victims to stop
torturing the victims in custody.

I am informed that a fact-finding undertaken by MASUM concerning the case
has revealed the following details. On 29 December 2011 at about 2 am a
team of police officers, reportedly from Baduria and Basirhat police
stations, raided the houses of the victims at night. The police assaulted
the victims at their home and later arrested them. The officers did not
offer any reason whatsoever for the search or arrest. The police complied
with no mandatory procedures at the time of the search and arrest and no
memo of arrest was issued. Neither did the officer inform the detainees or
their relatives where the victims would be taken to at the time of arrest.

The victims in the case are Mr. Rajak Mondal and Mr.Fajular Mondal, both
residents of Srikati village, North 24 Parganas district, West Bengal.

I am informed that the police reportedly later registered a fabricated case
against the victims accusing them that the police had arrested them on 31
December 2011 from Moylakhola bus stand and that they had 6.700 kilograms
of cannabis in their possession. The family of the victims alleges that
this is a false case. They also claim that the illegal search, arrest,
fabrication of the false case and detention is due to political revenge to
detain the victims for a prolonged period of time. Illegal possession of
narcotic and psychotropic substances in India is a serious offense in which
obtaining pre-trial bail is extremely difficult.

In the meanwhile it is also alleged that police officer Mr. Sanjoybabu has
demanded Rs. 3000.00 as bribe to be paid to the officer and that should the
family fail to make the payment the victims would be further assaulted in
custody. Fearing for the safety of the victims, Mr. Rashid Mondal, father
of Rajak paid the bribe through one Mr. Sahabab Mondal who reportedly works
as an informer to the local police. Sahabab had reportedly informed Rashid
that the officer, after accepting the bribe, had agreed to stop torturing
Rajak.

Days after the arrest the families of the victims were informed that the
victims are charged with offences punishable under the provisions of the
Narcotic Drugs and Psychotropic Substances Act, 1985. The allegedly false
case registered against the victims as Basirhat police station case, crime
number 643/2011, is under Section 20 (b) (i) of the Act. It is revealed
that even though the arrest was made on 29 December, the victims were
produced before a Magistrate only on 1 January 2012, which violates the
mandate in law that requires the police to produce an arrested person
before a judicial officer within 24 hours from the time of arrest. There
are also allegations that the victims were tortured while they were in
custody. At the moment the victims are detailed at Dum Central Correctional
Home, in West Bengal as under trial prisoners.

The practice of torture is widespread in India. Unchallenged and unopposed,
it has become a normal and legitimate practice for the law enforcement
agencies in the country. Torture in custody is reported regularly in India
and the instances of custodial torture and other forms of violence is at an
alarming rate in India. Reports allege that between 2001-10 more than
14,231 persons have died in police and judicial custody in the country.
This means that during the past ten years on an average 4 persons dies
every day while in custody.

In a democratic society, the role of the police is to protect the rights of
the citizens. However, in India it is well known that the police
systematically abuse their authority and employ custodial torture as part
of their investigation and fabricates false cases against persons as they
wish. The poor, the deprived, women and children and political activists
are mostly the victims of police violence.

The barbarity of incarceration is validated by the popular
retributive-deterrent philosophy, which is the current sentencing norm in
many criminal jurisdictions and India is no exception to this. Fabrication
of false cases, custodial violence, including torture and death in
police/judicial custody strikes a blow at the rule of law, which demands
that the powers of the executive should not only derived from law but also
that the same should be limited by law. In this scenario, the lacking of a
proper law that criminalises torture creates a congenial environment for
the law enforcement agencies to continue with their criminal acts with
impunity.

Section 211 of the Indian Penal Code 1860 mandates punishment for
fabricating false charges of offences made with intent to injure the
victim. Whoever with intent to cause injury to any person, institutes or
causes to be instituted any criminal proceedings against that person or
falsely charges any person with having committed an offence, knowing that
there is no just or lawful ground or such proceeding or charge against that
person shall be punished with imprisonment of either description for a term
which may extend to two years, or with fine or with both; and if such
criminal proceeding be instituted on a false charge of an offence
punishable with death, imprisonment for life, or imprisonment for seven
years or upwards, shall be punishable with imprisonment of either
description for a term which may extend to seven years, and shall also be
liable to fine.

Section 120B(1) of the code mandates punishment for criminal conspiracy:
whoever is a party to criminal conspiracy to commit an offence punishable
with death, imprisonment for life or rigorous imprisonment for a term of
two years or upwards, shall where no express provision is made in this code
for the punishment of such conspiracy, be punished in the same manner as if
he had abetted such offence.

Section 384 of the code mandates punishment for extortion that whoever
commits extortion shall be punished with imprisonment for a term, which may
extend to three years or with fine or with both.

Section 458 of code mandates punishment for lurking house trespass or house
breaking by night after preparation for hurt,assult,or wrongful restraint.-
whoever commits lurking house by night or house breaking by night having
made preparation for causing hurt to any person or for assaulting any
person, or for wrongfully restraining any person, or for putting any person
in fear of hurt, or assault, or wrongful restraint, shall be punished with
imprisonment for life either description for a term which may extend to
fourteen years and shall also be liable to fine.

Section 326 of the Code mandates punishment by way of imprisonment for a
term of ten years to a person who voluntarily causes hurt by dangerous
weapons or means.

Section 34 of the code mandates: acts done by several persons in
furtherance of common intention that whenever several persons in
furtherance of do a criminal act the common intention of the all each of
such person is liable for that act in the same manner as if it were done by
him alone.

Section 13(1)(d)(i) of The Prevention of corruption Act, 1988 defines that
while holding the office as a public servant, obtains for any person any
valuable thing or pecuniary advantage without any public interest is said
to be commit the offence of criminal misconduct.

Section 13(2) of the Act mandates: any public servant who commits criminal
misconduct shall be punishable with imprisonment for a term which shall not
be less than one year but which may extend to seven years and shall also be
liable to fine.

Article 21of the Constitution of India mandates: No person shall be
deprived of his life or personal liberty except according to procedure
established by law.

Article 39A of the Constitution of India mandates Equal justice and free
legal aid -The state shall secure that the operation of the legal system
promotes justice, on a basis of equal opportunity, and shall in particular
provide free legal aid by suitable legislations or schemes or in any other
way, to ensure that opportunities for securing justice are not denied to
any citizen by reason of economic or other disabilities.

Under section 18(3) of the protection of Human Rights Act, 1993 the
national human rights commission has amble power to advance cause of
compensatory justice to the victims of torture.

Article 5 of the Universal Declaration of Human Rights (UDHR) incorporated
the right to protection against torture and the same has been sought to be
achieved through declaration of the Fifth United Nations Congress held in
1975. UN Convention against torture provides for redress and compensation
to the victim. Article 14 of the convention categorically emphasizes that
every state party to the convention must ensure that the tortured victim is
provided fair and adequate compensation and rehabilitation. The right to be
free from arbitrary detention is a fundamental right. Even though the India
has not rectified the convention, India torture is a subject of ius cojens
that mandates the state to ensure that the torture is prevented in all
jurisdictions.

The clear case of the prohibition against torture was delivered by the
supreme court of India in Sunil Batra vs. Delhi Administration reported in
1978 (4) Supreme Court Cases 494. The Supreme Court did not find itself
handicapped by the absence of specific provisions against torture in the
constitution and gathered support from Article 14 and 19 in holding against
the permissibility of torture vis-à-vis persons suspected and accused of
crime. At this juncture the prevention of Torture Bill 2010 becomes
relevant. The mandatory requirements prescribed in the code of criminal
procedure for arrest and also the police did not comply the directives
issued by the Supreme Court in the D. K. Basu case in this case.

Khatri vs. State of Bihar reported in 1981 All India Reporter (Supreme
Court) p. 928 is an example of how cruel and in human treatment to the
prisoners insolates the sprit of constitution and human value as well as
Article 21 as far as persons in custody are concerned. The court had held
that these rights are available even for prisoners.

In A. Nallassivan vs. State of Tamil Nadu & others reported in 1995
Criminal Law Journal 2754 (Madras) 90 women and 28 children from a village
were detained in the office of forest range officer for a night. The court
held the detention is illegal, offending fundamental rights and directed
enquiry by the Central Bureau of Investigation (CBI) India. The court
further added that if a police officer acted contrary to the proviso to
Section 160(1)of the code of criminal procedure, such deviation should be
reason for prompt punishment, since the policemen may not become a law unto
themselves while expecting others to obey the law.

The supreme court of India in Aravinder Singh Bagga vs. State of Utter
Pradesh reported in All India Reporter 1994 laid down that the state shall
pay compensation to all persons illegally detained and humiliated for no
fault of theirs. In this case court discussed the matters fabrication,
illegal arrest, etc.and awarded compensation of Rs.10000 each to two
victims and an amount of Rs. 5000 to another tortured victim.

The victims in this case are still in prison and denied of bail, while bail
is the rule and committal to jail an exception. In the words of Justice
V.R. Krishna Iyar "…the issue is one of liberty, justice, public safety,
and burden of public treasury all of which insist that a developed
jurisprudence of bail is integral to a socially sensitized judicial
process." The Supreme Court of India in Moti Ram vs. State of MP Supreme
Court Cases p. 47, held that the consequences of pretrial detention are
grave. Defendants presumed innocent are subjected to psychological and
physical deprivation in life during their time in jail. Conditions during
pretrial detention in India are sometimes worse than those imposed upon
convicted defendants. The jailed defendants loose their job, if the person
has one, and is prevented from contributing to the preparation of his
defence. Equally important, is the burden of rescuing the person from
detention falls heavily on innocent members of his family.

Had the police in West Bengal been operating in compliance with the law,
incidents as reported in this case would not have happened. It shows that
discipline and commitment to duty is not ensured within the rank and file
in the force. Violence by the police against the poor and other forms of
corruption and crimes committed by the police with impunity is a threat to
the the rule of law. Such a force is a threat to the entire country.

I therefore request you:

1. That the complaints of custodial torture and fabrication of false case
in this case be investigated by an independent agency;
2. That the statements of the victims recorded immediately by a judicial
officer;
3. The alleged officers placed on immediate suspension;
4. The victims should be produced before appropriate medical officer for
treatment;
5. The victim and the witnesses shall be provided adequate protection
immediately;
6. The be released on bail without further delay;
7. The entire investigation supervised by a judicial officer and the victim
or a member of their family is informed about the progress of the
investigation:
8. The government pay an interim compensation to the victim pending the
final disposal of their complaints by a court of law.

Yours sincerely,

----------------
*PLEASE SEND YOUR LETTERS TO:*

1. Director General & Inspector General of Police
Government of West Bengal
Writers Buildings, Kolkata-1
West Bengal
INDIA
Fax: +91 33 2214 4498 / 2214 5486
Email: dgp_westbengal@xxxxxxxxx

2. Chief Secretary
Government of West Bengal
Writers' Building, Kolkata, West Bengal
INDIA
Fax: + 91 33 22144328
Email: chiefsec@xxxxxxxxx

3. Additional Chief Secretary (Home)
Government of West Bengal
Writers' Building, Kolkata, West Bengal INDIA
Email: sechome@xxxxxxxxx

4. Ms. Mamata Banerjee
Chief Minister
Government of West Bengal
Writers' Building, Kolkata, West Bengal
INDIA
Fax: + 91 33 22144328
Email: cm_wb@xxxxxx

5. Chairperson
National Human Rights Commission
Faridkot House, Copernicus Marg
New Delhi 110001
INDIA
Fax: + 91 11 2338 4863
E-mail: chairnhrc@xxxxxx


Thank you

Urgent Appeals Programme
Asian Human Rights Commission (ua@xxxxxxxxx)


<http://www.urgentappeals.net/support.php?ua=AHRC-UAC-030-2012>



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--
Kirity Roy
Secretary
Banglar Manabadhikar Suraksha Mancha
(MASUM)
&
National Convenor (PACTI)
Programme Against Custodial Torture & Impunity
40A, Barabagan Lane (4th Floor)
Balaji Place
Shibtala
Srirampur
Hooghly
PIN- 712203
Tele-Fax - +91-33-26220843
Phone- +91-33-26220844 / 0845
e. mail : kirityroy@xxxxxxxxx
Web: www.masum.org.in

--
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be guided by truth as one sees it. But no one has a right to coerce others to
act according to his own view of truth. - Mohandas Gandhi

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