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Rule of Law & Constitutional Mandate

This is not a political discourse. Those who are interested in political spicy contents should remain away from this and should not scroll down at all. In last six months, it is observed, especially in Maharashtra, that whenever any incident takes place which has political overtone, criminal complaints are field with the police at different locations / stations, irrespective of the fact where the incident has taken place. Recently one of the influential persons in political field has, in media, made a statement that his party’s followers shall file numerous police complaints (FIR) at various places / cities and towns, about the some incident. Common man wonders whether this is permissible under any law. No doubt, complaints can be filed with the police or even a private criminal complaint can be filed in the Magistrate Court, without going to police authorities.

The next step is governed by the Criminal Procedure Code (Cr. PC.), 1973 (2 of 1974) and Indian Penal Code (IPC), (45 of 1860). Police, based on the narration of the complainant decide whether prima facie any offence is disclosed and if yes, then only, police register it as First Information Report (FIR). Second step is whether the incident is of cognizable nature or not. The Cr. PC has provided in its First Schedule, the Classification of Offences under the IPC. In Section-2 [c] of the code the definition of ‘Cognizable Offence’ is given as “…means an offence for which and “cognizable case” means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant”. It will also be useful to look at the definition of “non-cognizable offence” given in Section-2 [l] of this code, which is as, “means an offence for which, and “non-cognizable case” means a case in which, a police officer has no authority to arrest without warrant. Naturally, the question comes to mind what “Warrant” is and it is answered in same Section-2 in sub-section (x) as “warrant case” means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years. So, naturally, what police officer must be doing is, first ascertaining what act can be called as “cognizable”, so that a person against whom the FIR is to be registered, can be arrested without warrant from the court. Let us see the provisions stipulated in Section-41.

Sction-41: When police may arrest without warrant – (1) any police officer may without an order from a Magistrate and without a warrant, arrest any person –

(a) who commits, in the presence of a police officer, a cognizable offence,
(b) against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years whether with fine, if the following conditions are satisfied namely.
i) The police officer has reason to believe on the basis of such complaint, information, or suspicion that such person has committed the said offence;
ii) The police officer is satisfied that such arrest is necessary-
[a] to prevent such person from committing any further offence; or
[b] for proper investigation of the offence; or
[c] to prevent such person from causing the evidence or the offence to disappear or tempering with such evidence in any manner; or Since further part of this sub-section is not very relevant, I will not go further of it.

Normally, abusing somebody, uttering slanderous or insulting words, or displaying pictures or defame or circulate any video or audio with the intention to bring disrepute to anybody, falls under Sections: 499, 500 and 501 of the Indian Penal Code. This is in case of individual and not about any specific caste, creed, faith or religion. If the offence is punishable with the punishment of seven years or more, then, it becomes cognizable and bail has to be obtained from court.

However, I do not want this post to become a full-fledged legal article and wish it to be easy for layman to comprehend, I desist from elaborating further. Under these above-mentioned three sections of IPC, the punishment prescribed is of two years or fine or both and are non-cognizable and bailable also. So, there is no problem at all basically. But what must be happening, police, on case-to-case basis, add up other sections of serious nature to make it ‘cognizable’, so that a person can be detained and forced to approach for bail to Sessions Court or Magistrate, as the case may be; irrespective of whether such additional charges are likely to be proved or not. Anyway, let us proceed further to discuss about the multiplicity of complaints lodged with police-stations at different locations in the same city or other cities or even in other states. I need not tell you about such incidences, as such incidences are not very old in Maharashtra and my intention here is not to indulge myself in the politics or political debate, but to make citizens aware about the salient features of law pertaining to utterances of slanderous words or abusive language against anybody.

The most important point to note is what our constitution says about this. In this connection, there are two important articles, namely, Article-20 and Article- 21.

Article-20: Protection in respect of conviction for offences: (2) No person shall be prosecuted and punished for the same offence more than once. So, it is emphasized that a person cannot be prosecuted twice and cannot be punished twice for the same offence (incident). ‘Prosecuted more than once’ means and includes forced to face complaint for the same offence at more than one place and occasion. Here, I am talking about the public prediction of people filing complaints at different locations for the same incident, knowing fully well that filing such multiple complaints for the same act / incident cannot withstand the constitutional test. In fact, such prediction apparently covertly communicates to people to do that. It is unfortunate that the law is misused for ulterior motives, rampantly unashamedly. It is responsibility of legislators, who take oath for becoming the members of legislative assembly or council, to advise their followers to abide by the law and not otherwise; because they are entrusted with responsibility of legislating the law for public good, which includes the allegiance and observance of the law.

Article-20 grants protection from ‘double jeopardy’, meaning nobody can be punished for the same offence or act twice, as seen above; but leaders in do not advise their followers to desist from indulging in such unlawful acts of misuse of law.

Now, let us look at the Article-21: Protection of Life and Personal Liberty: It guarantees the most valuable Fundamental Right to Life, which is not a mere biological existence / survival, but it encompasses a vast arena and includes fair wages, clean and unpolluted environment, decent social environment etc. [Those who are interested in understanding the nuances of this article may read Maneka Gandhi vs. Union of India, AIR 1978 S.C.597, Sheela Barse vs. State of Maharashtra AIR 1983 S.C. 378, Javed Ahmed Abdul Hamid Pawala vs. State of Maharashtra AIR 1985 S.C. 231, Rudul Shah vs. State of Bihar AIR 1983 S.C. 1086 and also Rajesh Ranjan Yadav @Pappu Yadav vs. CBI AIR 2007 S.C. 451] I think it is necessary to quote another precious fundamental right enshrined in our constitution.

Actually, the next Article-22 is also of great importance, but not really relevant, which deals with Protection against arrest and detention in certain cases. Now, let us turn to an equally important legal provision in our constitution, related to utterances of words etc.; and here utterances means ‘expression’, which may be in any other form than uttering the words, like circulating, publishing or uploading audio, video, pictures etc. The drawing cartoons and caricatures also falls under the term ‘expression’ and sharing such things in any social media, electronic or otherwise, can become offence, if not done with legitimate intention.

Many a times, usage of simple words in particular fashion or style can denote the objectionable meaning, which is not apparent prima facie, like calling or referring to somebody as ‘Extremely wise’, emphasizing with ascent on particular syllable/s (letters or words) may suggest different meaning which is hidden and may be insulting and hurting somebody; and even sometimes, it would have been done without really intending to hurt, but actually has caused a hurt.

The legislation Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013, does not consider the intention of the person but what is important is impact on the aggrieved woman than what the accused man had intended to. This is an exception to general provisions regarding the ‘intention’, described in the Indian Penal Code, as one of the important elements to constitute the offence, stipulated. And in such cases, a man can be charged with the section of this Act, in addition to IPC, because the provisions of this Act are more stringent, comparatively.

Article-19 (1) All citizens shall have the right (a) to Freedom of Speech and Expression

It has bestowed on us all ‘Right to Freedom of Expression’, but of course, not unfettered or unbridled. The said article has stipulated certain conditions and limitations of this article. All responsible citizens must read and understand those conditions. However, it is observed that this right is more misused, by trampling the same right available to others. Government can impose reasonable restrictions limiting this right appropriately. On this background, if multiple complaints are filed in different police-stations, at different geographical locations, knowing fully well that it serves no purpose; it will amount to harassment of the individual, unnecessarily. Recently, Honorable Supreme Court, as published in media, has fined a petitioner for filing a Public Interest Litigation (PIL), which was frivolous. Similarly, High Courts should take suo moto cognizance and impose heavy fines on such complainants for misusing the provisions of law. Since now almost all police stations in Maharashtra are connected by internet, it is very easy and possible to find out whether any complaint is filed against any particular person for the same incident on same date etc. and if yes, another complaint should not be registered second time. This will help, assist and protect the individual from unnecessary harassment caused by multiple complaints.

The most appropriate way will be to amend the Criminal Procedure Code by Parliament and prescribe the appropriate procedure to prevent the misuse of law and strengthen and protect the Rule of Law.

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