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Armed Together Against Civil Liberties And

Armed Together Against Civil Liberties And

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This article presents the situation of human rights in Barak valley of Northeastern state Assam of India. The region is a most marginalized and ignored place in the world and for this reason atrocities committed by Indian state and other non-state actors-- armed opposition groups never comes to the scanner of media. International as well as national human rights organizations have no presence in this obscure part of the planet.

The article shows that innocent civilians are targeted both by security forces and armed opposition groups. Of late they developed a nexus and help each other in extortion.
This article presents the situation of human rights in Barak valley of Northeastern state Assam of India. The region is a most marginalized and ignored place in the world and for this reason atrocities committed by Indian state and other non-state actors-- armed opposition groups never comes to the scanner of media. International as well as national human rights organizations have no presence in this obscure part of the planet.

The article shows that innocent civilians are targeted both by security forces and armed opposition groups. Of late they developed a nexus and help each other in extortion.

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Published by: Waliullah Ahmed Laskar on Nov 14, 2008
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06/26/2012

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ARMED TOGETHER AGAINST CIVIL LIBERTIES ANDHUMAN RIGHTS
Waliullah Ahmed Laskar 
Although there is no existence of a single worth-mention indigenous Armed OppositionGroup operating in Barak Valley, the southern part of the North Eastern state of Assamin India comprising of Cachar, Karimganj and Hailakandi districts with a population of about four million, it has been notified as 'disturbed area' under the infamous ArmedForces (Special Power) Act, 1958. It May not be denied that some members of theAOGs based in neighbouring states of Manipur, Nagaland or other parts of Assam tryto use the area as a rest house, however, in most cases in vain mainly due to the factthat people of the area are peace loving and unsympathetic towards violent way of life.80% of the people depending basically on agriculture are just struggling to survive theodds of weather and fate. They do not nurture any great expectations or exactingdemands against the State or God. Are these the reasons why Indira Gandhi dubbedthe valley as 'Island of Peace'?This 'island of peace' has been disturbed now for quite some time as much by the'disturbed area' of the AFSPA as by activities of members of groups believing inFreedom of Assuming Special Powers with Arms. Many a family gets sandwichedbetween AFSPA and FASPA. This double victimization happens when somemembersof an AOG in the dead of night come to a house and ask for food, bed andother luxuries at gun points. There is no way out to escape the bullets even in case of hesitance, leave alone the option of denial. In the morning well after they had goneaway the state security forces arrive and in the name of search and interrogation theyvirtually wreak havoc on the lives of the people present in the house. Severe beatingswith gun butts and bayonets, destruction of household goods, sexual assault onwomen and children, humiliation and every other type of torture and other cruel,inhuman or degrading treatment or punishment are meted out. State security forceswear shield of legal impunity by virtue of ASFPA and members of AOG are strippedoff any legal garb underthe FASPA and no law can touch them. How many of suchcases constitute a fit case for application of international humanitarian law?There is a more terrific development in the situation now. A rapport has beendeveloped, of late, between the members of state security forces and members of certain AOGs. They hatched a conspiracy to cut all tongues and fingers which wouldmove in protest or rise to point the fact respectively and started acting to translate it inreality.Such a collective effort of Assam Police, Central Reserve Police Force and an AOGcome into light with death of Jamir Uddin Laskar, 35 years, of village Boincherra(also known as Bhaicherra) under the Katlicherra Police Station in the district of Hailakandi in Barak Valley of Assam on 22 October, 2007 at about 10am caused bybullet wound fired upon by five CRPF personnel belonging to E-147 companycamping at Gharmura, Hailakandi. According to the eye witness account of theincident the deceased was collecting grass for his cattle from a nearby paddy fieldwhen the jawans came accompanied by a villager known as CRPF informer who
 
identified the deceased by pointing his finger and the jawans shot several rounds of bullets at him. The report of Barak Human Rights Protection Committee fact-findingteam cites two possible causes of this murder: (i) Jamir Uddin's elder brother wasearlier killed by some members of an AOG and since then he was working activelyagainst the AOG and was vocal against the rapport between the CRPF and thatAOG and (ii) there was a family feud between the supposed CRPF informer and thedeceased.This is a case of blatant violation of the inviolable right to life recognized in Article 6 of the International Covenant on Civil and Political Rights to which India is a party andhas the obligation under Article 2 of that Covenant "to ensure that any person whoserights and freedoms as herein recognized are violated and shall have an effectiveremedy, notwithstanding that the violation has been committed by persons acting inan official capacity". This right is also guaranteed under Article 21 of the Constitutionof India and the right to remedies also flows from this Article. Moreover, in Indianordinary criminal law this act of murder falls squarely under section 302 of the IndianPenal Code, 1860 and section 174 of the Code of Criminal Procedure, 1973 (CrPC).These sections of law impose a mandatory duty on the police and magistrate toregister a First Information Report of the case and hold inquest and other preliminaryinquiry. But the CRPF and Assam Police defying the authority of law and slapping onthe face of logic registered an FIR against the deceased in Katlicherra police station.It is a practice followed by the security forces in independent India established by theBritish police to suppress the freedom movement that if a person is in the hit-listsimply go to his home, call him and shoot him to death. Thereafter file an FIRcharging the deceased of attempt to murder under section 307 of the IPC and put onrecord thathe was died in an encounter in your exercise of power either conferred bysection 100 of the IPC which gives the right to self defence or 46(3) of the CrPCwhich empowers police to use force necessary to effect an arrest. The questionwhether the practicehas any legality in it came for consideration before NationalHuman Rights Commission in Case No. 234 (6)/93-94. The observation of theCommission deserves to be quoted in extenso: "Section 154 CrPC provides that if information is given orally relating tothe commission of a cognizable offence, theofficer-in-charge of the Police Station shall reduce it into writing. Section 156 speaksof power of Police officers to investigate cognizable cases. Section 157 provides thatif a cognizable offence is suspected from the information received or from other sources, the officer-in-charge of the Police Station shall forthwith send a report of thesame to the Magistrate empowered to take cognizance of such offence and he shallproceed to take up investigation of thecase. Section 173 requires the investigationto be completed with expedition and as soon as it is completed to forward theinvestigation report to the concerned Magistrate. The investigation must be directedto find out if and what offence is committed and as to who are the offenders. If, uponcompletion of the investigation, it appears to the officer-in-charge of the PoliceStation that there is no sufficient evidence or reasonable ground, he may decide torelease the suspected accused, if in custody, on his executing a bond. If, however, itappears to him that there is sufficient evidence or reasonable ground to place theaccused on trial, he has to take necessary steps as provided in Section 170 of theCode. In either case, on completion of the investigation, he has to submit a report tothe Magistrate. The report of investigation in such cases should be examinedthoroughly by the Magistrate so that complete application of the judicial mind is
 
available to ensure just investigation and upright conclusion. The Magistrate, onconsideration of the report, may either accept the same or disagree with theconclusions and call for further investigation as provided in Section 173 (8) of theCode. If the Magistrate accepts the report, he can take cognizance of theoffenceunder Section 190 of the Code."Section 157 (1) requires the officer-in-charge of the police station to apply his mind tothe information received and the surrounding circumstances to find out whether thereis reason to suspect the commission of acognizable offence which he is empoweredunder Section 156 to investigate. He cannot mechanically accept the informationreceived. When the information received indicates that death was caused in theencounter as a result of the firing by the Police, prima facie the ingredients of Section299 IPC which defines culpable homicide are satisfied. This is sufficient to suspect thatan offence of culpable homicide has been committed. Thus, Section 157 of the Code isattracted calling for investigation. Any plea like causing of the death in the case doesnot constitute an offence either because it was done in exercise of the right of privatedefence or in exercise of the powers of arrest conferred by Section 46 of the Code,can be accepted only after investigatinginto the facts and circumstances. Section 100of IPC provides that right of private defence of the body extends to the voluntarycausing of death if occasion for exercise of the right falls in any one of the sixcategories enumerated in that Section. Whether the case falls under any one of the sixcategories, can only be ascertained by proper investigation. Similarly, when Section 46(3) of the Code is invoked, it has to be ascertained as to whether the death of thedeceased occurred when he forcibly resisted the endeavour of the Police to arrest himand whether the deceased was accused of an offence punishable with death or imprisonment for life. Without proper investigation, the Police officer cannot say thatthe causing of the death in the encounter was not an offence either because it wasdone in exercise of the right of private defence or was done in legitimate exercise of the power conferred by Sec. 46 of the Code."Section 174 of the Code says that when the Police officer in charge of the Policestation receives information that a person has been killed by another, he shall makean investigation about the apparent cause of death and submit a report to the Districtor Sub-Divisional Magistrate and also to take steps to arrange for the autopsy of thebody. These provisions indicate that unnatural death has to be taken note of seriously by the Police and required them to find out by investigation the real causeof death. The responsibility is greater when it is the Police that are the cause of unnatural death. There is also a general feeling that most of the encounters are fake.It is, therefore, in public interest that the conduct of the Police involved is subjectedto proper scrutiny by investigation. To avoid the possibility of bias, the investigationin such cases should be entrusted to an independent agency like the State CID by ageneral order of the Government. We are, therefore, of the opinion that wheninformation is received in the Police Station about the causing of the death by thePolice officer in an encounter, the officer-in-charge of the Police Station must, after recording that information, draw the inference that there is reason to suspect thecommissionof an offence and proceed to investigate the same as required bySection 157 of the Code. If such a procedure is not required to be followed, it wouldgive licence to the Police to kill with impunity any citizen in the name of an encounter by just statingthat he acted in 'the right of private defence' or under Section 46 of theCode. A procedure which brings about such unjust, unfair and unreasonable

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