City lawyer takes state to HC over change in CrPC

Mid Day - - CITY - VINOD KU­MAR MENON vin­odm@mid-day.com

A RE­CENT amend­ment to the Crim­i­nal Pro­ce­dure Code (Crpc) has com­pelled a city lawyer to file a Pub­lic In­ter­est Lit­i­ga­tion (PIL) in the Bom­bay High Court against the state gov­ern­ment. The amend­ment that came out in May this year, has clipped the lower court’s pow­ers to en­ter­tain pri­vate com­plaints against pub­lic ser­vants.

Where ear­lier, if a per­son had a com­plaint against a pub­lic ser­vant, and if the po­lice did not act on it, the per­son had the right to ap­proach the lower court and file a pri­vate com­plaint. The court had the power to direct the po­lice to reg­is­ter an FIR and sub­mit a de­tailed re­port.

How­ever, un­der the re­cent amend­ment, the mag­is­trate can­not en­ter­tain any pri­vate com­plaints against pub­lic ser­vants with­out the ap­proval of the state gov­ern­ment, said ad­vo­cate Ra­jesh­war Pan­chal, who has now filed a PIL in HC.

Pan­chal said, “It is known that the po­lice ma­chin­ery has al­ways been used by the rul­ing gov­ern­ment, and this lat­est amend­ment to the CrPC only de­prives the com­mon man of jus­tice.” No­tably, one can­not di­rectly ap­proach the Ses­sions court, high court or Supreme Court in such cases.

Ad­vo­cate Pan­chal said, “In­ter­est­ingly, while the new amend­ment clips the court’s pow­ers, it says noth­ing against the po­lice con­tin­u­ing to use their dis­cre­tionary pow­ers to de­cide on whether or not to en­ter­tain such a com­plaint.”

In his PIL (copy with this pa­per) Pan­chal states, “This amend­ment to the Crim­i­nal Pro­ce­dure Code, 1973, is against the Con­sti­tu­tion of In­dia and de­feats the ob­jec­tive of our coun­try to fight cor­rup­tion. It has ac­corded un­prece­dented feel­ing of im­punity to pub­lic ser­vants who oth­er­wise are rarely ap­pre­hended for their nu­mer­ous acts of the cor­rup­tion.”

Pan­chal adds, “The ob­ject of the crim­i­nal pro­ce­dure code is to set up a mech­a­nism to as­cer­tain the guilt or in­no­cence of the per­sons and the code pro­vides the ma­chin­ery for pun­ish­ment of of­fences. An amend­ment tak­ing away the pow­ers of a mag­is­trate to direct an FIR is like pre­vent­ing crim­i­nal law to be set in mo­tion against of­fend­ers.”

In the years 1997, 2000 and 2004, the cen­tral gov­ern­ment had made sev­eral at­tempts to stall this pro­vi­sion in re­la­tion to pub­lic ser­vants. The Supreme Court twice struck down this move. Not­with­stand­ing such rul­ings by the Supreme Court, the Gov­ern­ment of Ma­ha­rash­tra car­ried out an amend­ment dated Au­gust 30, 2016, where it was stated that a mag­is­trate can or­der an FIR against a pub­lic ser­vant only when there is prior sanc­tion ob­tained.

So­cial ac­tivist James John of AGNI was shocked to learn about the lat­est amend­ment. “It is un­for­tu­nate that ju­di­cial in­ter­ven­tion is now at stake with such amend­ments, and the com­mon man who would look for­ward to jus­tice, will now be de­prived of a fun­da­men­tal right.”

James added, “In to­day’s era, where pub­lic ser­vants should be made more ac­count­able and trans­par­ent and held re­spon­si­ble for wrong­do­ings, they are be­ing shielded by the gov­ern­ment.”

Shailesh Gandhi, for­mer Cen­tral In­for­ma­tion Com­mis­sioner of In­dia, and an in­de­pen­dent RTI ac­tivist, said, “The amend­ment is an ab­surd move. The Supreme Court in nu­mer­ous cases has stated that the po­lice have to take cog­nizance of ev­ery com­plaint made to them. The lower courts di­rect­ing po­lice to reg­is­ter a com­plaint af­ter go­ing through the pe­ti­tion shows that the po­lice have not fol­lowed Supreme Court di­rec­tives and the courts are aware of this il­le­gal­ity.”

Gandhi added, “The fact re­mains that the court should take no cog­nizance of pri­vate com­plaints. It is the po­lice who need to act on ev­ery com­plaint. The state gov­ern­ment by mak­ing such un­wanted amend­ments is al­low­ing the wrong prac­tice to con­tinue, which is ab­surd.”

Milind Mhaske, di­rec­tor, Praja Foun­da­tion, “Such a move only serves to tram­ple the right to equal­ity.”

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