Two colonial-era laws allow police to frame people by producing dubious "witness statements" at will and are a key reason for India's large undertrial population, lawyers and former judges say.
"Here, the police investigate crimes by nabbing the suspects first but in the West, it's the other way round," Justice (retd) S.P. Talukdar said.
Former public prosecutor Kazi Safiullah blamed faulty criminal laws. After presenting the police version against the accused umpteen times in courts, he has written a book on his experiences, titled Free Indians are the Prisoners of Colonial Laws.
Safiullah, who had been a CPM MLA for sometime, said Sections 161 and 162 of the Criminal Procedure Code (CrPC) allow the police to rampantly frame people by preparing statements in the name of dubious witnesses or co-accused.
Section 161 allows an investigating officer to question witnesses and record their statements in writing; Section 162 stipulates against obtaining the purported witnesses' signatures to authenticate such statements.
"This allows the police to attribute the statement to any person, who may not even be aware of such a statement having been drawn up in his name. Arbitrary arrests are made on the basis of such statements. Ninety per cent of undertrials are in jail because of this practice," Safiullah said.
In 2003, a Centre-appointed committee on criminal justice reforms, chaired by Justice V.S. Malimath, recommended that Section 162 be amended so that witnesses have to sign their statements. But it is yet to be implemented.
When accused are acquitted after years of detention and trial, no action is taken against the investigators because the colonial laws protect the police and government officials, attributing to them "acts committed in good faith".
Safiullah recalled a minister once asking a public prosecutor to contest certain Opposition workers' bail petitions. When the prosecutor said the evidence was inadequate, the investing officer took away the case diary and returned with several "witness" statements under Section 161 CrPC, implicating those the minister wanted to keep in jail.
Under Section 164 CrPC, statements made by the accused or witnesses before magistrates need to be signed. "Do the police have more credibility than the magistrates?" Safiullah asked.
Safiullah said another opportunity for arbitrary arrest is provided by a legal provision that allows unnamed "others" to be booked along with those named in the FIR.
"This 'others' clause is a goldmine for the police as it allows false implication, arbitrary arrest and corruption. Governments in Independent India have not changed this provision because it helps them detain the Opposition rank and file," he said.
Safiullah admitted that the Left Front government had used these provisions against Trinamul and added that the new ruling party too was now employing the "same arm-twisting tactics".
Earlier, the CrPC of 1898 allowed preliminary scrutiny of evidence and witnesses by magistrates to decide whether the cases were fit for sessions court trial, usually meant for graver offences such as murder and rape.
Some lawyers felt the practice helped reduce the number of cases at sessions courts and consequent detention of the accused. But a 1973 amendment did away with the provision, allowing cops to implicate people falsely and detain them for longer periods, they said.
Justice Talukdar, however, said the amendment was needed to avoid time-consuming magisterial inquiries. "It almost tended to be a repeat of the trial process," he said.
This is another dreaded police ploy to continue a person's detention. The accused is picked up from court or jail premises in old and new cases, often illegally, after he is released on bail.
A senior lawyer recalled the order of Justice Manoj Mukherjee, former Supreme Court judge, who had asked the police to obtain court permission before picking up those acquitted or given bail in another case.
But the practice has continued, said lawyers Subhashis Roy and Kaushik Sinha who are defending several political prisoners, mostly Maoists.
The practice of lodging multiple cases against an accused means even bail does not always end his torment. Lawyer Sinha referred to Losso Hembram, a Jhargram tribal arrested in connection with the Jungle Mahal unrest.
"He has been made an accused in around 40 cases. Although he got bail recently, God knows how many years he would have to run around to get justice," Sinha said.
Calcuttan Parthasarathi Banerjee was arrested for alleged Maoist links in 2002. He got bail a year later but some of his cases are still pending after 10 years.
"I was made a co-accused in 10 cases; eight of them are still pending in Midnapore and Bankura courts. Apart from the recurring expenditure, it's been a prolonged nightmare: I have been attending court proceedings for the past one decade in distant courts," Banerjee said.
He referred to his poor tribal or backward-caste co-accused from villages in Midnapore and elsewhere. "They neither have the resources to hire lawyers nor can they afford to travel to distant courts for years together. Justice is still eluding all of us."
Sections 167 and 309 of the CrPC stipulate regular production of undertrials in court after every 14 days. But actual physical production is often bypassed on various pretexts such as lack of space in court lock-ups and courtrooms, or the safety of "dangerous criminals".
Judicial officers and police often ignore constitutional niceties to show "productions" on paper while the hapless prisoner is confined in the prison van parked in the court compound or cooped up in the court lock-up. "Prosecutors ignore this as they are more interested in availing themselves of police hospitality," a former public prosecutor said.
The police often submit half-baked chargesheets within 90 days to continue the detention and ask for time to furnish a supplementary chargesheet under section 173(8) CrPC. However, magistrates have the power to grant bail after going through the preliminary evidence.