KAVITA SRIVASTAVA | 21 OCTOBER, 2017
JAIPUR: The Rajasthan government has The Criminal Laws (Rajasthan Amendment) Ordinance, 2017 promulgated on 6th September, 2017, published on the September 7, 2017 in the Gazette is a sinister attempt of the Government of Rajasthan to abridge the fundamental right of speech and expression guaranteed under the Indian Constitution.
The ordinance seeks to thwart the citizens right to access criminal justice system in cases of complaints against abuse of law by public servants by introducing 2 provisos to Sec. 156 (3) and Sec. 190 of the Code of Criminal Procedure and by inserting a new offence in the Indian Penal Code by way of introducing a new clause, Sec. 228-B, which makes an offence termed "disclosure of identity of certain public servants".
The true intention of the Amendments introduced is to place an complete embargo or ban on a Judicial Magistrate before whom a complaint of having committed offences is made against any public servant, (including a Judge or Magistrate), from either ordering the police to investigate the complaint or worse, from any investigation being conducted against the said public servant (sec. 156(3) Criminal Procedure Code, new provision introduced) for acts done by them while acting or purporting to act during discharge of the official duties except without the previous sanction of the government under sec. 197 CrPC.
Very funnily, and perhaps exposing the motivated nature of the Government to somehow protect corrupt public servants and to win over them in support of the ruling party, is the amendment brought about to sec. 190 (1) of the CrPC directing that "no Magistrate shall order investigation nor will any investigation be conducted." This is a meaningless amendment as sec. 190(1) CrPC only provides for the Magistrate to take on file a private complaint filed alleging commission of an offence; this provision does not give power to the Magistrate to order investigation. This where is the need for this amendment?
We should point out that the amendments are superfluous and unnecessary as the existing provision in sec. 197 already provides protection to public servants by making it mandatory for a court to take cognisance of an offence against public servant only after getting "prior sanction" of the government. The ominous intent in the amendment becomes clear when we notice that while sec. 197 uses the term "cognisance" the new amendment refers to the word "investigate".
The true and alarming intention therefore is to prevent at the very threshold, any possibility of ``investigation' being ordered by a Magistrate when clinching evidence is prima facie brought before the court. The amendment in a way exposes the scant respect the government has for the judicial system, for the entire criminal justice system is premised on the fact that judicial officers represent "trained judicial minds" who ensure implementation of criminal laws in an unbiased, independent and fair manner.
The truly diabolic and "chilling" effect or sinister purpose in the new amendment is exposed when we consider the same Amendment Act has introduced a new proviso to the proviso, stating that no one "shall print or publish or publicise in any manner the name, address, photographs, family details or any other particulars which may lead to disclosure of the identity of such public servants" until such time that the State Government has given sanction to prosecute. The Ordinance introduces a new offence, sec. 228-B of the Indian Penal Code, making it a criminal offence on the part of anyone who discloses identity of certain public servants and provides for 2 years imprisonment and fine, if convicted.
The menacing import is very clear: to silence the media and to prevent the judiciary from exercising its judicial function of setting the criminal law in motion. In effect, what the Government cannot do by moving a Constitutional amendment to abridge the fundamental right of speech and expression the Government is doing by the back-door, to make it impossible for people to seek justice against corrupt public servants.
Legally, the amendments to the CrPC and IPC brought through the ordinance, goes against the unanimous ruling of the 5-Judge Constitutional Bench of the Supreme Court in `Lalita Kumari vs State of UP’ (2014) which clearly clarifies, that in case where the complaint against a public servant makes out a `cognisable’ offence, a FIR has to be lodged and investigation begun by the police officer. In cases where the alleged offences are non-cognisable or are about corrupt acts, then the Police officer or Investigation Officer (IO) in empowered to initiate a preliminary enquiry into the complaint, and in the event that a prima facie case is made out the police officer should place the complaint received and the report of the preliminary enquiry making out a prima facie case before the `concerned court’ and seek directions to obtain sanction to prosecute u/s 197 against the accused public servants.
This legal principle has been very succinctly summarised in the Circular of Government of Rajasthan, Home (Group-10) Department No. F.11(35) / Home – 10/2015 dated 24.08.2015. This Circular issued by the Addl. Chief Secretary, Home, Mr. A. Mukhopadhyaya very clearly summarises the legal position that when a non-cognisable offence is made out against a public servant, then the Prosecuting Officer of the concerned court after receiving the report from the Police Officer should bring the facts to the knowledge of the court about the public servant and the alleged offences and inform the court that no cognisance should be taken until and unless the requisite sanction under section 197 CrPC or Sectio 19 Prevention of Corruption Act is officially obtained and is on record.
Seen against this background it becomes explicitly clear that the Ordinance introducing amendments to sec. 156(3) Proviso, Sec. 190(1) proviso,of CrPC and introducing a new offence, sec. 228-B, IPC are in reality meant to neutralise the Constitutional bench ruling in Lalita Kumari case (2014), its own Circular of 2015 by removing the power of the police to initiate even a preliminary enquiry where a prima facie case is made out based on the complaint. The effort is to defang the police and investigating authorities by removing powers vested with them by law to initiate even a preliminary enquiry. To make it doubly sure that the government will protect corrupt officials, the Ordinance removes the power of the Magistrate to take cognisance or give directions to the police to investigate offences where the facts in the complaint make out a prima facie case.
Globally it is now well recognised that the `Right to Corruption-free governance is a fundamental right and a basic human right’. The Amendment institutionalised impunity and provides immunity to corrupt officials against even a preliminary enquiry when facts clearly establish an offence.
We would like to ask the Vasundhara Raje Government, as to why the need for an ordinance to keep everything under wraps. IS the intent of this ordinance to prevent the expose’ of the faces of corruption in this Government or prosecute or probe any of the cases of corruption as a part of the run up to the election in 2018.
It is also important to note that the ordinance has not been uploaded as yet on either Home or the Law Department website. The Rajasthan Rajbhawan (Governor’s) website only provides a list of ordinances and Acts promulgated. However although the list has been last updated on the 11th of September, it has no update of ordinance number 3, which is the one discussed above. Although ordinance number 2 was also on Criminal Law ( Rajasthan Amendment).
Interestingly the Governor’s website has more than 24 press notes on its website after the September 6, the date when the ordinance was promulgated, including greetings for KarvaChauth to the people of the state.
This note issued to the media has also not been put up on any website, neither law and justice, nor Home nor the police. It clearly shows that the intent was to suppress the information form the public, leave alone holding pre legislative consultation, an imperative, issued as a GO by the UPA Government in 2014 January.
The only mention that this important ordinance gets is in a press note of the DIPR on September 8.
Peoples Union for Civil Liberties demands that the Government immediately repeal this ordinance and not place it in the forthcoming State Assembly session for its passage to make an Act.
The PUCL will challenge this ordinance in the Rajasthan High Court at the earliest.
|Central Government Act
Section 156 in The Code Of Criminal Procedure, 1973 156. Police officer' s power to investigate cognizable case.
(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above- mentioned.
Central Government Act
Section 190 in The Code Of Criminal Procedure, 1973
190. Cognizance of offences by Magistrates.
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub- section (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under sub- section (1) of such offences as are within his competence to inquire into or try.
Central Government Act
Section 197 in The Code Of Criminal Procedure, 1973
197. Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or Magistrate or a public servant not removable from his office save by or with the sanction of the Government is accused of any offence alleged to have been committed by him while acting or purporting to act in the discharge of his official duty, no Court shall take cognizance of such offence except with the previous sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government: 1 Provided that where the alleged offence was committed by a person referred to in clause (b) during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply as if for the expression" State Government" occurring therein, the expression" Central Government" were substituted.
(2) No Court shall take cognizance of any offence alleged to have been committed by any member of the Armed Forces of the Union while acting or purporting to act in the discharge of his official duty, except with the previous sanction of the Central Government.
(3) The State Government may, by notification, direct that the provisions of sub- section (2) shall apply to such class or category of the members of the Forces charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub- section will apply as if for the expression" Central Government" occurring therein, the expression" State Government" were substituted.
(3A) 1 Notwithstanding anything contained in sub- section (3), no court shall take cognizance of any offence, alleged to have been committed by any member of the Forces charged with the maintenance of public order in a State while acting or purporting to act in the discharge of his official duty during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force therein, except with the previous sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it is hereby declared that any sanction accorded by the State Government or any cognizance taken by a court upon such sanction, during the period commencing on the 20th day of August, 1991 and ending with the date immediately preceding the date on which the Code of Criminal Procedure (Amendment) Act, 1991 , receives the assent of the President, with respect to an offence alleged to have been committed during the period while a Proclamation issued under clause (1) of article 356 of the Constitution was in force in the State, shall be invalid and it shall be competent for the Central Government in such matter to accord sanction and for the court to take cognizance thereon.]
(4) The Central Government or the State Government, as the case may be, may determine the person by whom, the manner in which, and the offence or offences for which, the prosecution of such Judge, Magis- trate or public servant is to be conducted, and may specify the Court before which the trial is to be held.
Central Government Act
Section 228A in The Indian Penal Code
232 [228A. Disclosure of identity of the victim of certain offences etc.—
(1) Whoever prints or publishes the name or any matter which may make known the identity of any person against whom an offence under section 376, section 376A, section 376B, section 376C or section 376D is alleged or found to have been committed (hereafter in this section referred to as the victim) shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine.
(2) Nothing in sub-section (1) extends to any printing or publication of the name or any matter which may make known the identity of the victim if such printing or publication is—
(a) by or under the order in writing of the officer-in-charge of the police station or the police officer making the investigation into such offence acting in good faith for the purposes of such investigation; or
(b) by, or with the authorisation in writing of, the victim; or
(c) where the victim is dead or minor or of unsound mind, by, or with the authorisation in writing of, the next of kin of the victim: Provided that no such authorisation shall be given by the next of kin to anybody other than the chairman or the secretary, by whatever name called, of any recognised welfare institution or organisation. Explanation.—For the purposes of this sub-section, “recognised welfare institution or organisation” means a social welfare institution or organisation recognised in this behalf by the Central or State Government.
(3) Whoever prints or publishes any matter in relation to any proceeding before a court with respect to an offence referred to in sub-section (1) without the previous permission of such Court shall be punished with imprisonment of either description for a term which may extend to two years and shall also be liable to fine. Explanation.—The printing or publication of the judgment of any High Court or the Supreme Court does not amount to an offence within the meaning of this section.]
(Kavita Srivastava is President, PUCL, Rajasthan)