34 JILI (1992) 416 Notes and Comments: Need To Eschew Malpractices in Law Enforcement N C: N E M L E

SCC Online Web Edition, Copyright © 2020
Page 1 Sunday, April 26, 2020

Printed For: M/s. Advani & Co .
SCC Online Web Edition: http://www.scconline.com
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
34 JILI (1992) 416
Notes and Comments: Need to Eschew Malpractices in Law Enforcement
NOTES AND COMMENTS: NEED TO ESCHEW MALPRACTICES IN LAW ENFORCEMENT

by
R. Deb*
I Introduction
LORD ATKIN once observed, “Justice is not a cloistered virtue. She must be allowed to suffer
the scrutiny and respectful, even though outspoken, comments of ordinary men”. 1 Likewise, the
apex court has held that the object of the contempt proceedings is not to afford protection to the
judge as an individual but to uphold the majesty of the law and protect the interest of the public
which would undoubtedly be affected if by the act or conduct of any party, the authority of the
court is lowered and the sense of confidence which people have in the administration of justice
by it is weakened. It is not by stifling criticism that confidence in court can be created. A
defamatory statement against a judge may not necessarily amount to contempt though it may
be a libel so far the judge is concerned and it would be open to him to proceed against the
libellor in a proper action if he so chooses. It is only when the publication of the defamatory
statement is calculated to interfere with the due course of justice or proper administration of law
by the court, that it can be punished summarily as contempt. One is a wrong done to the judge
personally, the other is a wrong done to the public 2. If this is the position in regard to the highest
forum of justice, that is, the judiciary itself, the executive organs of the state including the police
cannot afford to claim any greater immunity from wholesome criticism of their actions by the
members of the public with a view to ensuring administrative efficiency, justice and social
defence. Indeed, as Voltaire says, a government learns more from its critics than from its
admirers; to stifle criticism is to head for ruin. The highest court of the land too has observed,
“whoever occupies a public position must accept an attack as a necessary though unpleasant
appendage to his office.”3
II Police and the law

In a democratic society every organ of the state ought to be accountable to the people. And
this applies more appropriately to the police than
Page: 417
others as the police represent the law and order of the organised society. The police should not
therefore take amiss any wholesome criticism of their conduct with a view to improving the
image of the police. This alone can ensure better police-public relations and without this no
police force anywhere in the world can be a success in a democratic system of public
administration. Indeed, in a democratic set-up the members of the police are not above the law
but subject to it like all other citizens 4 and, as pointed out by Lord Atkin every action of the
executive has to be supported on grounds of legality when challenged before a court of law. 5
How can the police insist on irreproachable behaviour from wrongdoers if their own conduct is
not above board? Thus public insistence on law observance can be achieved best if the police
themselves as the country's principal law enforcing agency set the example of law abiding ness
before the citizens by scrupulously observing the law. “Law observance by the police is thus the
best form of law enforcement that one can conceive of in a country under the
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
Rule of Law”.6 Rule of law, indeed requires an honest band of public servants who are not only
motivated by its lofty concepts but are prepared to carry out the behest of the law at any cost.
Under our laws and the Constitution decency of state behaviour has been assured by even
arming the accused with a number of basic human rights, but they can never be preserved, far
less upheld, unless we have in this country an honest, humane and un- brutalised police force
whose members are determined to act fairly and within bounds of law. The provisions of the
Code of Criminal Proceedure, 1973, aim at prosecuting a wrongdoer if that can be done with
utmost fairness and not otherwise. Clearly the idea is that no one should be put to the
harassment of a criminal trial unless there are good and substantial reasons for holding it. 7 Even
a losing litigant like the prosecuted accused should feel that he had been fairly dealt with by the
investigating officer.8 If the police forces feel handicapped and hamshackled due to any
unnecessary legal constraints, they can, at best, seek through appropriate channels a
reconsideration of the law, but till the law is reformed or changed, they have no justification for
ignoring the law or not upholding it.9
III Third degree methodology of investigation

The greatest single factor which has tarnished the image of the police in India is the practice
of third degree method in the investigation of cases.
Page: 418
Such a practice only alienates the police from the public and people dread the police, and do all
they can to avoid any connection with a police investigation.10
Whatever may be the wrongs which an individual might have been accused of committing, it
is not for the police to punish him, for law does not give it any such power. In fact it condemns
such actions as serious offences punishable under ss. 330 and 331 of the Indian Penal Code
1861.11 When a policeman indulges in third degree methods he not only brutalises himself but
also degrades himself to the level of a criminal, may be campares even less favourably than the
criminal in his custody. For, his crime in trying to obtain a confession by torturous method,
coming as it does from an educated person and a person charged with the sacred duty of
upholding the law and the Constitution, becomes more reprehensible than the misguided act of
an ordinary criminal. Section 29 of the Police Act, 1961 and Art. 20(3) of the Constitution of
India clearly forbid it. Expediency, protection of society or the imperative need to bring an
offender to justice are but poor arguments in favour of such an out-moded and barbaric
system.12 Law certainly expects an investigator to unravel the mysteries of a sordid crime, but it
does not approve of his turning into another criminal in order to solve a crime. “Crime is
contagious. If the Government becomes a law-breaker, it breeds contempt for law. To declare
that in the administration of the criminal law end justifies the means, to declare that
Government may commit crime in order to secure conviction of a private criminal-would bring
terrible retribution. Against that pernicious doctrine the Court must resolutely set its face… We
have to choose, and for my part I think it a less evil that some criminals should escape than that
the Government should play an ignoble part.”13 The father of the nation too taught us that in all
our actions both ‘end’ and ‘means’ must be fair.
It is not understood that when law itself punished the practice of third degree with 7 to 10
years' imprisonment, why should an investigator still take the risk of going to jail for that long a
period and losing his job for good to the utter discomfiture of his family by merely trying to
obtain a confession by third degree methods! His over-zealousness in this regard will not be
appreciated by anyone; and once he is caught,
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
he will have to face the consequences of his acts single-handed. There are on record several
cases in which State Governments themselves had preferred appeals against acquittals to higher
courts to get the offending police officers punished
Page: 419
for practising third degree.14 With what wisdom and for whom had these officers then taken such
a great risk on their shoulders?
The highest court of the land had in a number of decisions condemned such practice in no
unmistakable terms and recommended condign legal and departmental punishments to stop this
gross malpractice in the investigation of cases. Being concerned over frequent cases of deaths in
police custody the apex court in Ram Sagar Yadav even recommended a change in the law of
evidence throwing the onus on the police to explain as to how a prisoner in their custody died
under suspicious circumstances. In a tone of anguish the court observed, “Before we close we
would like to impress upon the government the need to amend the law appropriately so that
policemen who commit atrocities on persons who are in their custody are not allowed to escape
by reason of paucity or absence of evidnece. Police officers alone and none else, can give
evidence as regards the circumstances in which a person in their custody comes to receive
injuries while in their custody. Bound by ties of a kind of brotherhood, they often prefer to
remain silent in such situations and when they choose to speak, they put their own gloss upon
facts and pervert the truth. The resuft is that persons on whom atrocities are perpetrated by the
police in the sanctum sanctorum of the police station are left without any evidence to prove who
the offenders are. Tne law as to burden of proof in such cases may be re-examined by the
legislature so that handmaids of law and order do not use their authority and opportunities for
oppressing the innocent citizens who look to them for protection.” 15 It is a pity that more often
than not there is a misplaced sympathy even for the law violating police officer, and instead of
helping the administration to bring him to book, there is a tendency to save him in devious
ways. To scuttle such attempts even the United Nations had to issue a circular in December,
1982 entitled “Principles of Medical Ethics Relevant to the Role of Health Personnel, particularly
Physicians, in the Protection of Prisoners and Detainees Against Torture and other Cruel,
Inhuman and Degrading Treatment or Punishment”. 16 It is heartening to note that at least in one
recent case the medical officer (kudos
Page: 420
to the doctor) very objectively stated in his evidence that multiple injuries caused on the body of
the accused in police custody were homicidal and could not have been caused by an accidental
fall as claimed by the prosecuted police officers. 17 It is felt that social control in the form of
approval or disapproval of police action can motivate the police to become just, fair and law-
abiding. If the society firmly refuses to condone or acquiesce in policeman's unfair and illegal
methods, such transgressions of the law by law enforcement officers would soon become a thing
of the past.18
IV Remand to police custody

It is rather unfortunate that in this country the investigating police still feel that a case in
hand is solved as soon as they manage to get a confession from the accused and hence the
tendency to extort a confession by adopting torturous methods of
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
investigation. They fail to understand that a confession made under pressure is not at all
admissible in evidence under section 27 of the Evidence Act even if it leads to the discovery of
fact in view of the guarantee against testimonial compulsion embodied in Art. 20(3) of the
Constitution. Such a confession under pressure even if judicially recorded is often false,
unverifiable and is often retracted in court. And once such a confession is retracted, it is of no
value to the prosecution without substantial corroboration from other independent sources. Now
the moot point is that since most of the torture for extorting a confession takes place after
getting the accused on police remand, would it not be desirable to do away with the present
practice of remanding the accused to the custody of the investigating police under s. 167 Cr. P.
6. after his initial production in court? To this a counter question may perhaps be asked:
Whether abolition of police remand will not hamper investigation of cases or stand in the way of
bringing offenders to book? Thus where the accused has already furnished some clues which call
for further interrogation or which require further clarification by him, a denial of police remand
would mean a denial of opportunity to complete the investigation. This certainly need not be so.
By a suitable amendment of the law, the magistrate could be empowered to grant the
investigating police a further opportunity to examine the accused in jail custody. If as a result of
such further examination the accused makes a confessional statement, the magistrate could
then be moved to record such a confessional statement judicially. Under such circumstances
third degree method can never be adopted unless the police and the jail staff collude with each
other, which will be a very remote possibility as it would be contrary to the interest of the jail
staff who will then have the custody of the accused. If in Japan inspite of the
Page: 421
right of the police to interrogate an indicted accused on voluntary basis, the police as a matter of
fact rarely interrogate him in deference to the principles of adversary system which requires the
legal status of the accused to be protected,19 why should the investigation police in India not be
able to forgo the opportunity to have the accused in their custody for a second time even when
they would be assured of an opportunity for further interrogation of the accused in jail custody
as suggested above? This little fairness on their part will greatly enhance their image and the
resultant benefit may be that a day might come when the law-makers may be motivated to bring
the law at par with that of the United Kingdom, U.S.A. and Japan by agreeing to make
statements and confessions to police admissible in evidence.
Of course, to introduce such a proceedure ss. 164 and 167 of the Cr. P.C., and s. 27 of the
Evidence Act which now requires the accused to be in police custody to enable the discovery
statement to be admissible in evidence, will have to be amended. Indeed an amendment of s. 27
of the Evidence Act is long over due. In Durlav's case20 Rankin, J. of the Calcutta High Court, as
his Lordship then was, observed, “There might be reason in saying that if a man is in custody,
what he may have said cannot be admitted [in evidence] but there can be none at all in saying it
is inadmissible in evidence against him because he is not in custody”.
V Padding, concoction and fabrication of evidence in investigation

Another rampant malpractice which is rather common throughout the sub-continent is the
police practice of padding and concoction of evidence to buttress a case under investigation. This
practice is rooted in the tendency of the departmental superiors to judge the merit of an officer
not by his day to day work, sense of dedication to duty and honesty of purpose, but by results.
This insistence on good results acts as a direct motive amongst subordinate officers to bloster up
their result-sheets for the annual
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
inspection by padding, concoction and fabrication of evidence in specific cases with a view to
showing a high percentage of convictions in cases investigated by them. An officer should,
therefore, be judged more by his honesty of purpose and devotion to duty than by results.
Another cause for padding is the distrust of police evidence both by the law, as in the cases of
even most voluntary confessions and statements before the police falling within the ambit of s.
25 of the Evidence Act and s. 162 of the Cr. P. C, as well as by that of the courts of law. The
Gorey Committee on Police Training said, “It has been mentioned to us that police officers
Page: 422
resort to improper methods as Courts do not believe them”. 21 Another indirect cause of it is
perhaps too high a standard of fool-proof evidence that is often insisted upon by the courts from
the prosecution. Commenting on this aspect of the matter Krishna Iyer, J. of the Supreme Court
observed, “Judicial quest for perfect proof often accounts for police presentation of fool-proof
concoction. Why fake up? Because the Courts ask for manufacture to make truth look true. No,
we must be realistic.” 22 It is often not realised that perfect proof cannot perhaps be had in this
matter- of-fact imperfect world where truth suffers some infirmity when projected through
human process. “While it is necessary that proof beyond reasonable doubt should be adduced in
all criminal cases, it is not necessary it should be perfect. If a case is proved too perfectly, it is
argued that it is artificial;if a case has some flaws, inevitable because human beings are prone to
err, it is argued that it is too imperfect. One wonders whether in the meticulous hypersensitivity
to eliminate a rare innocent from being punished, many guilty men must be callously allowed to
escape”.23
However, some unscrupulous police officers still seem to think that if the culprit is really
known, there is no harm in creating some evidence to secure his conviction. This is queer logic.
If fabrication of evidence were to be justified because of the so-called laudable motive of
punishing a known culprit, then the worst criminal on earth also could have justified the blackest
crime on ground of good motive. Good end can never justify bad means. ‘End’ and ‘means’ must
both be scrupulously clean. Furthermore, the purpose of the honest investigation is to find out
the truth by an impartial investigation. Had it not been so, there would not have been any
necessity for the legislature to enact provisions like ss. 182 and 211 of the Penal Code, 1860
(false information or charge with intent to injure) or ss. 250 and 258 Cr. P.C. (compensation for
frivolous accusation or arrest) for the protection of innocent persons unjustly accused of offences
which they never committed. 24 In India where there are no defence investigators or investigators
attached to the District Attorney's office as in U.S.A., who can be asked to recheck the findings
of the investigating officer in case of doubt, 25 there is a duty cast on the investigating police “of
seeing that innocent persons are not charged on irresponsible and false implications”. Thus there
is a duty cast on investigating police to scrutinse evidence and to refrain from building up a case
on its basis unless satisfied of its truth.26
Page: 423
The investigating officer has to travel from evidence to accused and not from accused to
evidence. Padding and concoction, proceeding as they do from a preconceived bias against the
accused merely on the basis of an accusation which may or may not be true, completely nullifies
this quest for the truth. And above all as has been enjoined
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
by Rule 3 of the Police Code of Conduct 27 the police are not the judiciary and have no power to
adjudge the guilt of the accused, far less to punish him. Their duty is to place the evidence as it
is before the court through the public prosecutor and abide by the verdict of the court.
The remedy for eradicating these rampant evils of third degree, padding, concoction and
fabrication is to organise determined efforts, both at the highest administrative and political
levels of the government, to weed out officers who in their blind faith in the efficacy of these
illegal and immoral methods still continue to besmear the fair name of the police by indulging in
these malpractices. Let the political executive of the government and senior officers of the police
demonstrate in their thought and action that their battle against these unclean and inquisitorial
methods of investigation is a real article of faith with them and even for bringing known
predators to book the slightest deviation from the lawful path will not be allowed to go
unpunished.28
VI Burking and minimisation of offences
Another vice that plagues police-public relations and destroys the confidence of the judiciary
in the country's police is burking and minimisation of offences. Delivering the Sardar Vallabhbhai
Patel Memorial Lectures for 1985, the Vice President of India, Dr. Shankar Dayal Sharma as the
then Governor of Andhra Pradesh, observed, “There are several disabilities that plague the
Indian police at present. First and foremost evil rampant in our country is concealment and
minimisation of crime. It is common knowledge that there is a large scale ‘burking of crime’ that
is, failure to record crimes or not recording clear picture of the crime”. 29 The Gorey Committee
on Police Training too pointed out this problem in their report. 30 As a practising lawyer this
author too once failed to get a cognizable case registered with the police even by moving a
senior officer as it involved the possibility of conducting a part of the investigation abroad. He
was instead asked to bring a court order under s. 156(3) of the Cr. P.C. Why cannot a police
officer perform his plain duty to register a case without seeking shelter under the umbrella of a
court order? Section 154(1) Cr. P.C. mandatorily requires an officer in charge of a police station
to register an
Page: 424
FIR. when information is given to him regarding a cognizable offence and sub-section
(2) of the same section31 enjoins upon him a duty to give a copy of the FIR. forthwith and free of
cost to the informant, a duty which is invariably observed in its breach rather than in its
observance. Due to lack of knowledge regarding their rights and duties under the law, thanks to
our defective curricula and absence of any legal literacy programme by the police and our law
students, the citizens too do not insist on getting a copy of the FIR. Taking advantage of this
popular ignorance and credulity, the thana police often hoodwinks the informant by saying that
his information has been noted down in the ‘Diary’. A citizen hardly understands the difference
between a duly recorded FIR. and a mere entry in the general diary. The informant, therefore,
feels happy and leaves the police station fully satisfied that his case has been registered and an
investigation will follow. Does the legally illiterate citizen know that either his case has not been
registered at all, or if it has been recorded, it has merely been recorded as a piece of information
regarding a non-cognizable offence in which no investigation is required to be done. At times, a
clever thana officer would even make a show of investigation by visiting the spot or deputing a
subordinate officer to do so and thus create an impression in the mind of the informant and the
people in the neighbourhood that a regular investigation is afoot though in reality he might not
have at all registered a formal FIR. in the case; for, had he done so, he was duty
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
bound to give a copy of it free of cost to the informant. 32
This unethical and illegal practice too is deeply rooted in the Jong-standing practice of judging
officers on the basis of results and statistics. Too many cognizable crimes would go to show that
crime was not under control and, therefore, in order to give a good account of himself the thana
officer would readily take to burking and minimisation of offence at the cost of the public who
would nevertheless suffer from a spurt of crimes though artifically shown to be under control on
papers.33
Here again, the remedy has to be provided by the higher echelons of the police service itself
and the political executive by awarding condign punishments to defaulting officers without any
mercy or soft-pedalling. It would also be helpful if legal aid clinics are jointly organised by the
public relations department of the police and law students to inform citizens about their rights
and duties under the law. Senior officers of the police like Directors-General and Inspectors-
General too can occassionally make broadcasts over the TV. and radio net-work in this regard.
Page: 425
VII Police, politics and non-performance of duties

“Few things in the world of the police service can damage the police image as much as police
involvement in politics. Police in their professional capacity have to be apolitical and impartial in
their application of the law”34 Interference with the statutory duties of the police or other
executives officers contrary to the provisions of the law has to be deprecated at all times and
more so when it impedes performance of their duties in the maintenance of public order and
investigation of cases. Thus directions like—not to promulgate orders under s. 144 Cr. P.C., 35 not
to interfere in gheraos,36 not to have recourse to firing 37 not to enter a place of worship or a
university campus or not to submit a charge-sheet without first obtaining the approval of the
political executive,—all seem to be illegal orders. These powers have been given under the law to
certain specified officers and they alone as agents of the Jaw have to act in accordance with their
own assessment of the situation and to the best of the dictates of their conscience. In exercise of
their statutory powers the officers of the police are, of course, to act under the supervision and
guidance of their departmental superiors as
s. 36 of the Cr. PC. by making senior officers of the police as officers-in-charge of all police
stations in their respective jurisdiction clearly saddles them with the authority to give advice,
guidance and even directions in these matters. Thus a Superintendent of Police would be
perfectly justified in ordering his subordinate officer to submit a charge-sheet against a
particular person even in supersession of a final report that may have been submitted by the
subordinate officer by virtue of his powers under s. 36 read with s. 173(8) of the Cr. PC. 38
Moreover, s. 23 of the Police Act, 1861 clearly gives power to a superior officer to issue a lawful
order to his subordinate. However, no such power has been given to any political executive, not
even to a minister.
VIII Gheraos and police
In Jay Engineering's39 case a Special Bench of the Calcutta High Court struck down the
executive instructions of the government whereby policemen were forbidden to interfere in cases
of ‘gheraos’ amounting to cognizable
Page: 426
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
offence of wrongful confinement and being members of unlawful assemblies without first taking
a clearance from the Labour Minister. It was further held that the government circular clearly
conflicted with the law contained in ss. 54, 127 (now ss. 41 and 129), 154 and 155 of the Cr.
P.C. and were therefore illegal. Almost to the same effect have been the observations of the High
Courts of Tamil Nadu and Mysore in similar cases of gheraos. 40 All these High Courts
unequivocally held that if the police did not perform their duties under the law to lift a gherao,
the High Court would direct them under Art. 226 of the Constitution or s. 561 A (new s. 482) of
the Cr. P.C. to take appropriate action.
IX Investigation and charge-sheet

Though Jay Engineering case was reported in 1968, yet years later in mid-seventies a lady
principal was allowed to be gheraoed with impunity and she eventually died as a result of a heart
attack suffered in course of the gherao by her students in the very city of Calcutta where Jay
Engineering case too had taken place. We have, of course, now paid a tribute to her memory by
naming a city park after her name. Could not the police speedily move sue moto under s. 149
Cr. P.C. to save her life? Is not prevention of crime a part of their duty? Similarly, it has been
held in Abhinandan Jha's case that the power to submit a charge- sheet or final report in a case
as the final step in the investigation belongs under ss. 169, 170 and 173 Cr. P.C. to the police
and though the magistrate can even take cognizance of a case on a negative final report, 41 yet
he cannot direct the police to submit a charge-sheet for the simple reason that the formation of
an opinion whether or not there is a case to place the accused on trial is the final step in the
investigation,42 and that final step is to be taken only by the police and by no other authority. 43
In Nazir Ahmed's case too their Lordships of the Privy Council felt that in India the police have a
statutory right to investigate the circumstances of an alleged cognizable crime without requiring
any authority from the judicial authority and it would be an unfortunate result if it should be held
possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the
court.44 If this is so in regard to the members of the judiciary who have, as we have seen before,
undoubtedly a good deal of supervisory powers over the police investigation under ss. 156, 157,
158, 159, 164,167, 169, 170, 173 and
Page: 427
174 of the Cr. P.C., can any other authority, political or otherwise, claim greater power to
interfere with the working of the police in their sphere of statutory investigational duties? A joint
reading of Abhinandan Jha and Nazir Ahmed's cases would go to show that where law has
specifically given a statutory power to the police, then that power has to be exercised only by
the police and by no other authority. “Where a power is given to do a certain thing in a certain
way, the thing must be done in that way or not at all; other methods of performance are
necessarily forbidden”.45 It would thus appear that even in exercise of their general power of
superintendence under s. 3 of the Police Act, the State Government would not, except in non-
statutory administrative or executive matter, be able to give directions or orders for performance
of a duty in a manner inconsistent with specific statutory provisions.46
X Temple entry and police

The same position would hold good in regard to other statutory duties of the police. Thus in
regard to the ban now in vogue almost throughout the country which forbids police entry into a
place of worship or an educational institution unless invited to do so
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
by the authorities in charge of such places, it is submitted with respect that even conceding it to
be a wise policy does it not really result in violation of the law of the land, or does it not really
mean that the police are being handicapped in the performance of their duties in the matter of
prevention of offences and bringing offenders to book which are their clear statutory duties
under s. 23 of the Police Act, and ss. 41(a), 149, 151 and 152 of the Cr. P.C.” 47 In the recent
past we have had situations when places of worship had been turned into veritable arsenals for
piling up of illicit arms and ammunition and for carrying on of all sorts of illegal activities, but the
police were still not allowed to enter those places on political grounds. If a dangerous criminal
against whom serious charges like arson, murder, rioting and the like are pending, enters a
religious place, does he become immune from arrest under the law? How have these places of
worship, educational institutions and universities come to be equated with foreign embassies on
the soil of India enjoying extra-legal diplomatic immunity from the law of the land? Under what
law, authority, or principle of rule of law does the political boss restrain the police from
performing their statutory duties under the law? Contributing a paper in 1983 at an All-India
Seminar, this humble author had said, “Both the Raghuhardayal Commission on Ranchi-Hatia
riots and the National Police Commission have pointed out the illegality
Page: 428
inherent in such a practice but nevertheless the practice continues as a prudent administrative
step though in clear violation of the law…. And if this is a wise step,
then why do we keep this anomaly without amending the law”? 48 It is gratifying to note that this
view of the author has since received support from the High Court of Delhi in Paras Ram's case
to say, “Police Power of the State does not end in the vicinity of or even at the gates of a place
of worship. The State forces are entitled to take all such steps in relation to a place of worship as
they could in relation to any private place, if such intervention is necessary in the interest of law
and order or in discharge of their investigational duties so long as the action is in conformity with
the law”.49
It is trite to say that a statutory power given to the police by the Parliament cannot be taken
away by a so-called executive direction in derogation of the law. The highest court of the land
too has held, though in a different context, that statutory provisions must prevail over executive
instructions. Thus in Chief Settlement Commissioner's case the apex court observed, “…it is
essential to emphasise that under our Constitutional system the authority to make the law is
vested in the Parliament and the Stale Legislatures and law making bodies and whatever
legislative power the executive administration possesses must be derived directly from the
delegation of the legislature and exercised validly only within the limits prescribed. The notion of
inherent or autonomous law-making power in the executive administration, is a notion that must
be emphatically rejected.”50
In view of the plethora of authorities cited above is it too much to expect the police to act in
conformity with the law which they in their oath of office promise to respect and uphold?
———
*IPS (Retd); Ex-Principal Surendra Nath Law College and Jogesh Chandra Chowdhuri College of Law, Calcutta; Ex -member,
Central Advisory Board on Social Defence, Ministry of Social Welfare, Government of India; Ex-National Correspondent for India
with the U.N. and Advocate, Calcutta High Court.
1 Ambard v. Attorney-General for Trinidad, 1936 AC 322 : A.I.R. 1936 P.C. 136
2 Brahma Prakash Sharma v. State of U.P., A.I.R. 1954 S.C. 10 : 1954 Cr. L.J. 238 (S.C.).
-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
3 Kartar Singh v. State of Punjab, A.I.R. 1956 S.C. 541 : 1956 Cr. L.J. 945.
4 Harold Scott, Scotland Yard, at 18.
5 Eshugbayi Eleko v. Govt. of Nigeria, 1931 SCC OnLine PC 33 : A.I.R. 1931 P.C. 248 at 252
6 R. Deb, Police and Law Enforcement 294-95, (2nd edn. 1988).
7 State of Rajasthan v. Gurcharandas Chadha, A.I.R. 1970 S.C. 1895 : 1979 Cr. L.J. 1416 (S.C.), per Fazal Ali, J.
8 Om Parkash v. State, 1979 SCC OnLine Del 93 : 1980 Cr LJ (NOC) 67 (Delhi).
9 R. Deb, supra note 6 at 58.
10 S.C. Misra, Police Administration in Delhi, (National Police Academy).
11 R. Deb, supra note 6 at 69.
12 R. Deb, Principles of Criminology, Criminal Law and Investigation, 276-77 (3rd edn. 1991).
13 Olmstead v. United States, 72 L Ed 944 : (1928) 277 US 438-per Justice Brandiase and Justice Holmes as quoted by
Justice Krishna Iyer in Prem Chand v. Union of India, (1981) 1 SCC 639 : 1981 Cr L.J. (S.C.) at para 8.
14 State of A.P. v. N. Venugopal, AIR 1964 SC 33 : 1964 (1) Cr. L.J. 16 (S.C.) : A.I.R. 1964 S.C. 33: State of V.P. v. Ram Sagar
Yadav, 1986 Cr. L.J. 836 (S.C.); (1985) 1 SCC 552 : A.I.R. 1985 S.C. 416 : 1986 Cri LJ 836, Kashmiri Devi v. Delhi Administration,
1988 Cr. L.J. 1800 (S.C.) 1988 Supp SCC 482 : A.I.R. 1988 S.C. 1323 : 1988 Cri LJ 1800 (though not an appeal against acquittal,
yet a case of police torture and minimisation of offences to save the offending police officers); State v. Sunil Biswas, 1990 SCC
OnLine Cal 120 : 1990 Cr. L.J. 2093 (Cal); Shekhar v. State of Karnataka, 1990 SCC OnLine Kar 413 : 1991. Cr. L.J. 1100 (Karn.)
a case of third degree resulting in death where anticipatory bail was refused to the offending police officers.
15 Ibid; See also Raghbir Singh v. State of Haryana, (1980) 3 SCC 70 : A.I.R. 1980 S.C. 1087 : 1980 Cr. L.J. 801 (S.C.) wherein
the Supreme court has urged the government and the superior officers to root out this evil of third degree.
16 R. Deb: supra note 6, Appendix-IV.
17 State v. Sunil Biswas, supra note 14.
18 R. Deb, “Death in Police Custody,” 1985 Cr. L.J. 3-6 (Journal section).
19 Letter dated 12-6-1984 from Masaharu H???no, Director, United Nation Asian and Far Eastern Institute, Fuchu, Tokyo to
the author as the then National Correspondent for India with the U.N. for Prevention of Crime and Treatment of Offenders.
20 Durlav Namasudra v. R., 1931 SCC OnLine Cal 146 : (1931) 36 C.W.N. 373 at 377 (1931).
21 The Report of Committee on Police Training, Ministry of Home Affairs (Delhi Admn.), Government of India, 98, (1974).
22 Inder Singh v. State, (1978) 4 SCC 161 : 1978 Cr. L.J. 766 (S.C.).
23 Ibid.
24 R. Deb supra note 12 at 23-24.
25 See the famous ‘Farael Case’, a compulsory reading material by all attorneys in the United States Department of Justice,
as reproduced under caption “Who killed Father Dham” at p. 8 of the National Police Gazette, March, 1953, New York, U.S.A.
26 K. Anandan Nambiar, In re, 1951 SCC OnLine Mad 254 : 1954 Cr. L.J. 167 (Mad).
27 R. Deb, supra note 6, Appendix I at 296.
28 R. Deb, Iid at 231-32.
29 Dr. Shankar Dayal Sharma, Sardar Vallabhbhai Patel Memorial Lecture II on “Rule of Law and Role of Police” 13 (1985).
30 Supra note 21 at 98.

-----------------------------------------------------------------------------------------------------------------------------------------------------------
-
31 Shaik Kalesha, In re, 1956 SCC OnLine AP 160 : 1957 Cr. L.J. 826 (A.P.); Kurukshetra University v. State of Harayan,
(1977) 4 SCC 451 : AIR 1977 SC 2229 : 1977 Cr. L.J. 1900 (S.C.); and A.R. Antulay v. Ramdas Sriniwas Nayak, (1984) 2 SCC
500 : AIR 1984 SC 718 : 1984 Cr. L.J. 647 (S.C.).
32 R. Deb, supra note 6 at 82-90.
33 S.C. Misra, supra note 10 at 201-202.
34 R. Haldana: “Improving the Police Image,” Indian Police Journal 17-19, (Jan-March 1980).
35 Report of the Commission of Inquiry on Ahmedabad Riots, (popularly known as Jagmohan Reddy Commission Report) 125
(1969).
36 Jay Engg. Works Ltd. v. State of W.B., 1967 SCC OnLine Cal 89 : A.I.R. 1968 Cal. 407
37Report of the Commission of Inquiry on Indore Firing Incidents (popularly known as Wanchoo Commission Report) at 29-30.
38 Raghunath Sharma v. State, 1963 SCC OnLine Pat 9 : 1963 (2) Cr. L.J. 42 (Pat); Ram Shankar v. State of U.P., 1956 SCC
OnLine All 32 : 1956 Cr. L.J. 1937 (All); State of Bihar v. J.A.C. Saldanha, (1980) 1 SCC 554 : 1980 Cr. L.J. 98 (S.C.) and Ram
Autar Jalan v. State of Bihar, 1985 SCC OnLine Pat 139 : 1986 Cr. L.J. 51 (Pat).
39 Supra note 36.
40 Chelpark Company Ltd. v. Commr. of Police, 1967 SCC OnLine Mad 235 : A.I.R. 1969 Mad. 33; Mysore Machinery Manufacturers
Ltd. v. State of Mysore, 1967 SCC OnLine Kar 75 : A.I.R. 1969 Mys 51.
41 Indian Carat (P) Ltd. v. State of Karnataka, (1989) 2 SCC 132 : A.I.R. 1989 S C 885 : 1989 Cr. LJ. 963 (S.C.).
42 H.N. and Inder Singh Rishbud v. State of Delhi, AIR 1955 SC 196 : 1955 Cr. LJ. 526 (S.C.).
43 Abhinandan Jha v. Dinesh Mishra, A.I.R. 1958 S.C. 117 : 1968 Cr. L.J. 97 (S.C.).
44 Nazir Ahmed v. Emperor, 1926 SCC OnLine Cal 270 : 40 C.W.N. 1221 (P.C).
45 Ibid.
46 A.C. Saldanha, supra note 38 at para 16; See also Abhinandan Jha supra note 43 at paras 19 and 20.
47 R. Deb, supra note 6, Ch. 11 on “Need to Stop Political Interference in Statutory Duties”, at 101-129.
48 R. Deb “Conflicts due to Contradiction in Social, Political and Administrative Systems in India and Their Implications For Internal
Security”, 1984 Cr. L.J. (Journal section), at 33-40.
49 State v. Paras Ram Chawla, 1984 SCC OnLine Del 95 : 1984 Cr. L.J. 1712 (Delhi).
50 Chief Settlement Commissioner, Punjab v. Om Parkash, AIR 1969 S.C. 33 at 36 (Emphasis supplied).
Disclaimer: While every effort is made to avoid any mistake or omission, this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification is being circulated on
the condition and understanding that the publisher would not be liable in any manner by reason of any mistake or omission or for any action taken or omitted to be taken or
advice rendered or accepted on the basis of this casenote/ headnote/ judgment/ act/ rule/ regulation/ circular/ notification. All disputes will be subject exclusively to jurisdiction
of courts, tribunals and forums at Lucknow only. The authenticity of this text must be verified from the original source.

34 JILI (1992) 416 Notes and Comments: Need To Eschew Malpractices in Law Enforcement N C: N E M L E

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

34 JILI (1992) 416 Notes and Comments: Need To Eschew Malpractices in Law Enforcement N C: N E M L E

Uploaded by

Copyright:

Available Formats

SCC Online Web Edition, Copyright © 2020

Page 1 Sunday, April 26, 2020

34 JILI (1992) 416

Notes and Comments: Need to Eschew Malpractices in Law Enforcement

NOTES AND COMMENTS: NEED TO ESCHEW MALPRACTICES IN LAW ENFORCEMENT

II Police and the law

III Third degree methodology of investigation

IV Remand to police custody

V Padding, concoction and fabrication of evidence in investigation

VII Police, politics and non-performance of duties

IX Investigation and charge-sheet

X Temple entry and police

4 Harold Scott, Scotland Yard, at 18.

6 R. Deb, Police and Law Enforcement 294-95, (2nd edn. 1988).

9 R. Deb, supra note 6 at 58.

10 S.C. Misra, Police Administration in Delhi, (National Police Academy).

11 R. Deb, supra note 6 at 69.

16 R. Deb: supra note 6, Appendix-IV.

17 State v. Sunil Biswas, supra note 14.

24 R. Deb supra note 12 at 23-24.

27 R. Deb, supra note 6, Appendix I at 296.

28 R. Deb, Iid at 231-32.

30 Supra note 21 at 98.

32 R. Deb, supra note 6 at 82-90.

33 S.C. Misra, supra note 10 at 201-202.

39 Supra note 36.

Security”, 1984 Cr. L.J. (Journal section), at 33-40.

You might also like