25 May, 2013

 

PUCL Takes Serious Exception to Illegal Order Directing Imprisonment of Social Activist Madhuri of Jagrit Adivasi Dalit Sanghatan and

PUCL Coordinator for Madhya Pradesh

PUCL is extremely shocked and takes exception to the arbitrary, illegal, and capricious manner by which the Chief Judicial Magistrate (CJM), Barwani on 16th May, 2013 directed the imprisonment in Central Prison, Barwani of Madhuri Krishnaswamy, a well respected tribal rights activist of the Jagrit Adivasi Dalit Sanghatan (JADS) and PUCL co-ordinator for MP. PUCL also takes exception to the rejection by the CJM, Barwani of the `Closure Report’ filed by the prosecution in a 2008 case as illegal, violative of established principles, abuse of the process of law and resulting in harassment of accused.

 

Facts of the Case:     The case in which Madhuri was imprisoned on 16th May, 2013 relates to incidents that took place in November, 2008. On 11.11.2008, 21-year old Baniya Bai, wife of Iddiya, of Sukhpuri village, full term pregnant, was brought for her first delivery to Primary Health Centre (PHC), Medimata, after a 15 km journey over bullock cart. The next day, 12.11.2008, the PHC Compounder, VK Chauhan, and nurse Ms. Nirmala, allegedly demanded a bribe of Rs.100/-.  As Baniya Bai and her parents-in-law were unable to pay the bribe, she was thrown out of the PHC. Baniya Bai delivered her child, in public, on the road opposite the PHC gate. A local tribal traditional mid-wife, Jambai Nana, assisted the delivery. Madhuri, who happened to be in the town heard about the incident and contacted the Silawad Child Health Centre, the Silawad Police Station.  Senior health officials at the District HQs at Barwani arranged for a vehicle to transport Baniya Bai and the newly delivered child to Silawad Hospital for further treatment. In the meantime local people gathered and protested about the callous and inhuman treatment meted to Baniya Bai, which was routine in the area.

 

In a bizarre manner, the Silawad police instead of taking action against the PHC compounder, Chauhan and other staff for criminal negligence endangering the life of Baniya Bai, corruption and abuse of office, registered an FIR, Crime No. 93 of 2008 dated 12.11.2008 u/s 353, 332, 147 and 427 IPC and sec. 3 and 4 of the Madhya Pradesh Chikitsak Tatha Chikitsa Seva Se Sambadh Vyaktiyon Ki Suraksha Vidheyak, 2008 at the Silawad Police Station showing PHC Compounder Chauhan as the complainant and naming Bachiya Borla, Bhurelal Borla, Basant Kumar, Kamal, Iddiya (husband of Baniya Bai) and Madhuri as accused. Iddiya was not even in Medimata on the incident day!

 

The offences charged included voluntarily causing hurt to deter public servant from his duty (sec. 332), assault or criminal force to deter public servant from discharge of duty (sec. 353), mischief causing damage to the amount of Rs. 50/- (sec. 427), and punishment for rioting (sec. 147).  All the offences carried a maximum sentence of 2 to 3 years imprisonment.  Sections 3 and 4 of the Madhya Pradesh Chikitsak Tatha Chikitsa Seva Se Sambadh Vyaktiyon Ki Suraksha Vidheyak, 2008 provides for imprisonment for a period of 3 months or fine of Rs. 10,000/- or both for act of violence or threat to medical personnel, which is deemed to be a cognisable and non-bailable offence.

 

In December 2010, Bachiya and Bhurelal Borla were arrested and released on bail by the local court. Madhuri, for the first time in over 4 years, was summoned to appear before court of CJM, Barwani on 16th May, 2013.

 

The Closure Report filed by Prosecution and its Rejection

 

A full 4 years after the FIR registration, on 18.12.2012 the prosecution filed a Closure Report u/s 173 Criminal Procedure Code (Cr.PC for short) stating that at the end of investigation they did not find enough evidence to prosecute Madhuri and others and seeking the `closure’ of the criminal case. Importantly, the prosecution reported that investigation revealed and established that the incident of 12.11.2008 by which Baniya Bai, was forced to deliver her child on the road outside the PHC had indeed taken place, and that local people had got agitated over the incident but that there was no pre-meditation or plan and it was a spontaneous gathering. Further, the police, on record, concluded that there was not sufficient evidence to establish the allegations of the PHC compounder.

 

In the meantime the case was transferred to the CJM Court, Barwani. On receiving notice, a sworn statement was recorded from the de-facto complainant, VK Chauhan. Chauhan on 5.3.2013, to the effect that the incident as narrated in the FIR did take place. On 20.4.2013, the CJM confirmed the statements of 5 witnesses. Noting that there is corroboration in the statements of all the witnesses regarding the names of the accused, the CJM held that there is no merit in closing the case and closure report cannot be accepted. The prayer for closure was therefore  dismissed and cognisance  taken for offences u/s 332, 353, 147, 427 and 3 & 4 of the Madhya Pradesh Chikitsak Tatha Chikitsa Seva Se Sambadh Vyaktiyon Ki Suraksha Vidheyak, 2008.

 

Importantly, the 2 accused who had obtained bail, Bhachiya and Bhurelal,  were not informed about the Closure Report or the objection of the de-facto complainant and not informed that they had a right to place before the CJM’s court their arguments in favour of the closure report or the de facto complainant’s objections.

 

Why is the Rejection of Closure Report Illegal?

 

The Supreme Court has in numerous cases including `Dhasmana v. CBI’ (2001(7) SCC 536), `Bhagwant Singh v. Commissioner of Police’, (1985(2) SCC 537), `M/s India Carat (P) Ltd v. Karnataka’, (1989(2) SCC 132) held that the Magistrate has the powers to reject the `closure report’ filed by the prosecution and to decide to continue with the criminal case. However the court has to strictly comply with the procedures enumerated in law and clarified by the SC.

 

There are three critical steps: (a) De-facto complainant should be informed to file his detailed objection rebutting  the prosecution decision to close the case. (b) Similarly the accused should also be given an opportunity to oppose the de-facto complainant as their interests will also be prejudiced by the order of the court; and (c) the Magistrate, after study of all relevant facts and materials before the court, should give a detailed reasoned order recording the reasons and explaining why the closure report is being rejected.

(i)                In the present case, the judicial order of the CJM, Barwani rejecting the `closure report’ is mechanical. It would not be out of place to highlight that in the eventuality of rejection of the closure report, the CJM ought to have directed for further investigation u/s 173 (8) or 156 (3) of the CrPC directing the police to examine Baniya Bai w/o Iddiya and her in-laws, who are referred  by the complainant in the FIR, the 161 Cr PC statements, to find out the truth of what happened on 11th and 12th November, 2008. By not doing so it shows a prejudiced mind  of the CJM and also violates their duty under law to do       ” full justice”. CJM also failed to take note of the remark of the closure report in which the incident of denying the PHC facilities to Baniya Bai which forced her to deliver on the roadside opposite the PHC which caused a public outcry. This selective and pick and choose method adopted by the CJM to decide on continuing with the prosecution is seriously objectionable, causes prejudice to the accused and is illegal.

(ii)              The de-facto complainant did not file a `protest petition’ or in any case, in his sworn statement recorded on 5.3.2013 did not explain the grounds as to why the prosecution’s `closure report’ was bad in law and fact. Not specifying the grounds of protest has robbed the prosecution and accused an important opportunity to counter the de facto complainant’s case and thus legally affects the rejection by CJM of the `closure report’.

(iii)            No opportunity was given to the accused in the case, particularly the 2 accused persons released on bail, to oppose the de-facto complainant. This constitutes a serious violation of the `Principle of fair hearing and opportunity’ to be given to the accused and thus invalidates the rejection by the CJM of the `Closure Report’.

(iv)             The SC in `Vasanti Dubey vs State of MP’ (2012) has clearly pointed that the functions of the magistrate are different from the police and reiterated the view that “we cannot impinge upon the jurisdiction of the police by compelling them to change their opinion so as to accord with his view” and that the Magistrate “cannot direct the police to straightaway file charge sheet”.

 

As the SC pointed out, unless the procedures were followed, the orders of the Magistrate to continue with the criminal prosecution would become illegal, and would result in an abuse of process of law resulting in vexatious proceedings and harassment of the accused.

 

Bar to taking Cognisance u/s 468(c) Criminal Procedure Code

We would like to point out that the CJM seems to have ignored the bar imposed by section 468 of the Criminal Procedure Code that no court shall take cognisance of an offence beyond a period of three years if the offence is punishable with imprisonment for a term exceeding one year but not exceeding 3 years. It is to be noted that all the offences charged in the present case impose a maximum sentence of three years. Hence the order of the CJM, Barwani dated 20.4.2013 taking cognisance itself is illegal as it hit by the limitation for taking cognisance imposed by section 468(c) of the Cr.PC.

It also needs to be pointed out that sec. 473 Cr.PC provides for extension of limitation in certain situations; however for invoking this provision the CJM ought to have clearly explained and spelt out in the order dated 20.4.2013, the reasons why the CJM was satisfied that the cause of delay has been properly and satisfactorily explained or that it is necessary to condone the delay in the interests of justice. To our knowledge, the order of the CJM neither explains the reason for the delay in filing the closure report (in effect the police final report u/s 173 CrPC) nor explains the reasons for condoning the delay thereby directing taking of cognisance in the `interests of justice’.

The provisions of sections 468 and 473 are mandatory and non-compliance with them vitiates the order of the CJM dated 20.4.2013 taking cognisance. In effect the order of the CJM taking cognisance of the case in FIR, Cr. No. 93/2008  becomes illegal. It follows that the consequent legal proceedings initiated in the case, including remanding Madhuri thereby imprisoning her, are also illegal.

 

Order of CJM Remanding Madhuri to Prison is Illegal

 

It needs to be pointed out that on 16.5.2013, Madhuri appeared voluntarily before the CJM, Barwani’s court on receiving summons. This clearly establishes her to be a law abiding citizen. It is in this light that PUCL takes exception to the action of the CJM, Barwani remanding and imprisoning Madhuri as being violative of criminal laws and procedures established by the Supreme Court, as being an infringement  of her fundamental right to freedoms to life and liberty under Articles 20 and 21 of the Constitution and being an egregious abuse of power by the Judicial Magistrate.

 

  1. The Supreme Court has repeatedly stressed that imprisonment should be resorted to only as a last resort and only in the circumstance when the court feels that the accused will abscond or evade justice or threaten witnesses or tamper with evidence and this fact should be recorded. In all other circumstances, if the accused person will appear on summons, then imprisonment should be avoided.

The material on record indicates that Madhuri is a law abiding person who appeared voluntarily, on being summoned to appear before the CJM, Barwani. Hence the order directing Madhuri’s imprisonment is bad in law, abuse of power of court and an act of judicial excess violative of fundamental rights of Madhuri.

 

  1. The key point to be noted is that there is a difference between the preliminary investigation stage when a FIR is registered to when a person has been summoned to appear and appears in compliance, at the end of investigation. The Supreme Court has said in `Joginder Kumar v State of UP’ (1994), that even at the stage of start of investigation the power to arrest is one thing, but the justification of the arrest is another matter altogether and can be judicially reviewed. Such being the legal dictum at the start of investigation, at the stage of end of investigation, the court will necessarily have to provide sound reasons justifying the need for imprisonment. Not doing so taints the remand order with illegality and unjustness.

 

  1. The SC has in M/s India Carat (P) Ltd v State of Karnataka (1989(2) SCC 132) and  in `Vasanthi Dubey vs State of MP’ (2012) said that in the event of a rejection by Magistrate of `Closure Report’, the CJM could only have proceeded to continue prosecution case by way of taking cognisance u/s 190(1)(c) or 200 CrPC and order issue of process to accused. In such a case where the accused appears on summons the accused is automatically entitled to bail on personal bond.

 

  1. There was no need for the CJM to have ordered remanding Madhuri to judicial custody as there is no need for `custodial interrogation’, as the case had reached the concluding stage. There are provisions like sec. 88 of the Cr.P.C. for `binding over’ accused to appear in further hearings. Hence it was unjust on the part of the CJM to have remanded Madhuri on 16.5.2013 and the remand order is illegal.

 

We reiterate, `Any order which is passed without adhering to the “procedure established by law” is illegal.  Further the `procedure’ must be “fair procedure”.

 

In the face of such illegalities committed by the CJM, Barwani in unjustly remanding Madhuri Krishnaswamy to judicial custody and imprisonment and the violation of procedural compliance while rejecting the `closure report’ of the prosecution, PUCL would like to place the following demands before the Madhya Pradesh Chief Minister Shri Shiv Raj Singh Chauhan:

 

1.      The immediate release of Madhuri Krishnaswamy: The State through the Director of Prosecutions must approach the appropriate judicial forum and defend the closure report and challenge the cognizance taken by the JMFC Court of the charge sheet by placing all relevant documents before the judicial forum so that an informed and judicious decision can be taken for closing the criminal case against Madhuri and other tribal people.

 

2.      Appropriate Criminal and Departmental Proceedings against errant PHC Staff: Appropriate criminal and departmental Proceedings must be initiated against the compounder, VK Chauhan, the nurse, Nirmala, and other staff of the PHC who denied the basic medical services to the pregnant woman, Baniya Bai on 11th November, 2008, endangering her life. The issue of limitation in initiating prosecution must be properly explained so that legally, criminal action can be launched against Chauhan and Nirmala and others responsible for endangering the life and health of Baniya Bai, even now.

 

3.      Just and adequate compensation: The State must pay just and adequate compensation to Baniya Bai for the severe physical harassment and mental agony she was forced to undergo in November, 2008, owing to the omissions and commissions of the Staff of PHC, Medimata.

 

4.      Proper Pre-&-Post Medical care for Expecting Mothers and Implementation of NRHM and JSY: The Government of MP must ensure that no woman, in the future, will be subjected to what Baniya Bai and others like her were subjected to, and medical services in maternal cases inter alia must not be denied and must be provided promptly and effectively. Barwani District Administration should ensure proper implementation of the Janani Suraskha Yojana as also the National Rural Health Mission.

 

5.      Protection and Care of Human Rights Defenders: The State government must ensure the protection and care of Human Rights Defenders in the State of Madhya Pradesh from any kind of retaliation, violence, discrimination or any adverse action whatsoever from private or State actors.

 

We would like to point out to the State Government that there has been consistent attempts by the state administration to silence and intimidate Madhuri by `externing’ her from the district and by threatening to arrest her by dubbing her a Maoist. Such intimidatory tactics are a shame and should be immediately stopped. We are also constrained to point out that there are similar attempts to specifically target other social activists like Medha Patkar, Dr. Sunilam and others by falsely implicating them in foisted cases. We call upon the Government of Madhya Pradesh to desist from such anti-democratic and anti-human rights and anti-constitutional practices and remind the government that voicing dissent and opposition are not part of democratic and human rights but in the end, help strengthen democracy.

 

We reiterate that it is a fundamental right of the citizens to be provided corruption-free, good governance, especially in the area of health services; people also have a fundamental democratic right to protest if the government and its functionaries fail to provide inclusive, equitable dignified health and other public services. The MP State Government in particular and all governments in general, also ought to recognise the democratic rights of citizens to seek accountability from state functionaries and to demand transparency, responsibility and open administration. The government ought to understand that a vigilant citizenry demanding good governance is reflective of a vibrant, strong democracy and should not treat them as `foes or adversaries’ who should be silenced and suppressed.

 

 (Dr. V. Suresh)                                   (Kavita Srivastava

National General Secretary                 National Secretary

 

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