New Delhi: Granting bail to Jignesh Mevani, the Barpeta sessions court on Friday said the molestation case against him was “manufactured” to keep the Gujarat MLA in detention for a longer period.
Mevani, the MLA from Vadgam, was first arrested by the Assam police for tweets about Prime Minister Narendra Modi. After he was granted bail in this case, Mevani was re-arrested almost immediately, after a woman police officer claimed that he had molested her in a police vehicle.
In his bail order, Judge Aparesh Chakravartty did not find any merit in the Assam police’s case against Mevani. He also commented on the “ongoing police excesses” in Assam, referring to the sharp increase in the number of people either killed or injured in police firing since Himanta Biswa Sarma became the chief minister. He warned that Indian democracy may be converted into a police state if such instances are not checked.
Judge Chakravartty said to prevent the registration of “false” FIRs, like the one against Mevani, the Assam police must undertake a series of reforms – including wearing body cameras and installing CCTV cameras in police vehicles when accused persons are being transported.
The judge also directed a copy of the bail order to be sent to the Guwahati high court and be placed before the chief justice, to look into this matter and consider whether it may be taken up as a public interest litigation to curb the ongoing police excesses in the state.
The Wire is reproducing a portion of the bail order in which judge Chakravartty deconstructs the FIR against Mevani and makes some recommendations to prevent police excesses.
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The FIR of the case was lodged by the alleged victim woman of the case, who is a woman sub-inspector of police of the Kokrajhar police station and that too, after informing her superior police officers at Kokrajhar and therefore, after taking all necessary advice. Therefore, though the instant FIR is the second FIR and hence, not maintainable, let us assume the FIR to be a true and correct account of the alleged incident and look into the merit of the case.
According to the FIR, along with Sri Surjeet Singh Panesar, APS, additional superintendent 0f police (HQ), Kokrajhar and TSI Mouti Basumatary while the first informant was escorting the accused person from LGB Airport, Guwhati to Kokrajhar in a government vehicle, after they crossed Simlaguri, under Barpeta Road Police Station, at around 01.30 PM, the accused uttered slang words at the first informant. When the first informant asked the accused to behave properly, the accused got agitated and used more slang words. The accused pointed his fingers towards the first informant and tried to frighten the first informant and pushed her down into her seat with force. The accused thus assaulted the first informant while she was discharging her duties as a public servant and outraged her modesty by touching her inappropriately while pushing her down.
After reaching Kokrajhar, the first informant informed about the incident to her senior officers. But, surprisingly, based on her information, her senior officers did not register an FIR, which is a clear violation of the provisions of the Section 154 of the Code of Criminal Procedure, 1973 which states that, every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.
Further, though the Barpeta Road Police registered the FIR under Section 294 [Obscene acts and songs] IPC also, allegedly for uttering slang words by the accused at the first informant, as there is no mention in the FIR about what words the accused uttered, the case should not have been registered under Section 294 IPC.
In the case of Pawan Kumar vs State Of Haryana And Anr, reported in 1996 SCC (4) 17, JT 1996 (5) 155, the Hon’ble Supreme Court held as follows:
“In order to secure a conviction the provision requires two particulars to be proved by the prosecution i.e. (i) the offender has done any obscene act in any public place or has sung/ recited or uttered any obscene songs or words in or near any public place; and (ii) has so caused annoyance to others. If the act complained of is not obscene, or is not done in any public place, or the song recited or uttered is not obscene, or is not sung/ recited or uttered in or near any public place, or that it causes no annoyance to others, the offence is not committed.”
Therefore, as the first informant did not mention what were the obscene words uttered by the accused, the word ‘slang’ used in the FIR cannot be held to be an obscene act within the meaning of obscene act as per Section 294 of the Indian Penal Code.
Further, the moving government vehicle in which the accused was transported by the first informant and the aforesaid two police officers, cannot be held to be a “public place” within the meaning of “public place” as per Section 294 IPC as nobody else had access to the said vehicle. Therefore, Section 294 IPC is not attracted to the case.
Further, pointing of fingers at the first informant with intent to frighten her and pushing her down into her seat with force, cannot be held to be using criminal force by the accused with intent to prevent the first informant from discharging her duties as a public servant. Therefore, commission of the offence under Section 353 IPC, prima facie, is not established.
Further, the alleged pushing down of the first informant into her seat also cannot be held to have been done with intent to outrage her modesty and that too, in presence of two other police officers, namely Sri Surjeet Singh Panesar, APS, Additional Superintendent of Police (HQ), Korajhar and TSI Mouti Basumatary. No sane person will ever try to outrage the modesty of a lady Police Officer in presence of two male police officers and there is nothing in the record to hold that the accused Shri Jignesh Mevani is an insane person.
Deciding an appeal where the appellant was convicted for commission of an offence under Section 354 IPC inside a train, in the case of Ram Das vs State Of West Bengal, reported in AIR 1954 SC 711, a three-Judge Bench of the Hon’ble Supreme Court held as follows:
“The story of a person trying to outrage the modesty of two women in the presence of two gentlemen is so unnatural, that there must be clear and unimpeachable evidence before it can be accepted.”
In the said case, after elaborate discussion, the Hon’ble Supreme Court convicted the appellant under Section 352. But, in the said case, there were independent eye witnesses whereas in the instant case, there is no evidence, not to speak of availability unimpeachable evidence, as the statement of the two police officers accompanying the first informant cannot be treated to be admissible in evidence. In view of the above, commission of the offence under Section 354 IPC by the accused person is also, prima facie, not established.
We are now left with the commission of the offence under Section 323 [Punishment for voluntarily causing hurt] IPC by the accused person. Even assuming while denying that the accused had pushed down the first informant into her seat and thereby, caused bodily pain to her, which is an offence punishable under Section 323 IPC, the same is a bailable offence.
Further, in her statement recorded by the Magistrate under Section 164 CrPC, the first informant has stated that along with Sri Surjeet Singh Panesar, APS, additional superintendent of police (HQ), Kokrajhar and TSI Mouti Basumatary, while she was transporting the accused Shri Jignesh Mevani from LGB Airport, Guwhati to Kokrajhar in a government vehicle, when they reached Simlaguri, Barpeta Road, she felt (emphasis added) that the accused was pushing her. She then asked him to behave but he abused her in his own language. Seeing the same, Sri Surjeet Singh Panesar asked the accused to behave properly with an on duty police officer. As she did not want to create a scene, she sat in a different seat. After reaching Kokrajhar, she told the Superintendent of Police, Kokrajhar [Thube Prateek Vijay Kumar] about the incident and thereafter, lodged the FIR with the Barpeta Road Police Station.
Thus, contrary to the FIR, the victim woman has deposed a different story before the learned magistrate. It seems, the victim woman was seating next to the accused person and as the vehicle was moving, the body of the accused must have touched the body of the victim woman and she felt that the accused was pushing her. But, the victim woman did not depose that the accused used his hands and outraged her modesty. She also did not depose that the accused uttered obscene words at her. She has deposed that the accused abused her in his language. But, she definitely did not understand the language of the accused. Otherwise, she would have mentioned the language used by the accused. In view of the above testimony of the victim woman, the instant case is manufactured for the purpose of keeping the accused Shri Jignesh in detention for a longer period, abusing the process of the court and the law.
Further, as the victim woman has deposed that she told about everything to the Superintendent of Police, Kokrajhar and thereafter, lodged the FIR, the instant FIR is the second FIR and the superintendent of police, Kokrajhar should have asked her to lodge the FIR with the Kokrajhar Police Station.
In fact, the Superintendent of Police, Kokrajhar should have and ought to have, directed the victim woman to lodge the FIR with the Kokrajhar Police Station. But, for reasons best known to him, he did not do so. Therefore, the case registered based on the instant FIR is not maintainable as the FIR is the second FIR.
In view of the above, the bail petition is allowed. The investigating officer/officer in-charge of the Barpeta Road police station is directed to release the accused Shri Jignesh Mevani on his furnishing Personal Recognizance Bond of Rs. 1,000/-, forthwith.
Send a copy of this order to the investigating officer/officer in-charge of the Barpeta Road Police Station for compliance, immediately.
Further, if the instant case is accepted to be true and in view of the statement of the victim women recorded by the Magistrate under Section 164 CrPC, which is not, then we will have to re-write the criminal jurisprudence of the country. Because, according to Section 26 of the Evidence Act, even confession made by an accused while in custody of police cannot be proved against him, but if the instant case is accepted to be true, not to speak of accepting the confession made by the accused to be true, will have to accept the statements made by three police personnel, who were transporting the accused and as such, the accused was in their custody, to be true and use against the hapless accused.
The Legislature never even imagined such an eventuality and hence, perhaps, did not make any provision for such an eventuality. The legislature knew that the police will compel an accused in their custody to make confession under coercion and hence, made the confession made by the accused while in custody of the police not admissible in evidence, with the exception of Section 27 of the Evidence Act. But the legislature never imagined that the court will have to deal with a case like the instant case where an accused will be tried allegedly for committing some offences while he was in the custody of the police, which no one else has seen.
In view of the above and to prevent the registration of false FIR like the present one and to give credibility to the police version of occurrences like the arrest of accused persons and the accused persons attempting to escape from police custody in the midnight, while the accused was allegedly leading the police personnel to discover something and the police personnel firing and killing or injuring such accused, which has become a routine phenomenon in the state, the Hon’ble Gauhati high court may perhaps consider directing the Assam Police to reform itself by taking some measures like directing each and every police personnel engaged in law and order duty to wear body cameras, to install CCTV Cameras in vehicles while arresting an accused or taking an accused to someplace for discovery of some articles and for such other reasons and also to install CCTV cameras inside all the police stations.
Otherwise, our state will become a police state, which the society can ill afford. Even opinion is growing in the world for providing next-generation human rights to the people in the democratic countries like, the right to recall an elected representative, the right to destabilise an elected government, etc. therefore, converting our hard-earned democracy into a police state is simply unthinkable and if the Assam Police is thinking about the same, the same is perverse thinking.
Therefore, send a copy of this order to the Registrar General of the Hon’ble Gauhati high court for placing the same before Hon’ble the Chief Justice to look into this aspect of the matter and to consider whether the matter may be taken up as a Public Interest Litigation to curb the ongoing police excesses in the state.
Return the record of the Barpeta Road Police Station Case No. 81/2022 and the case diary with a copy of this order, immediately.
This bail petition is disposed of accordingly.