Hum Janenge: 11/4/18

Monday, November 5, 2018

[IAC#RG] NHRC case no. 1390/25/18/2014-PF - Objection - Is NHRC India wants to prophet killers in uniform?

6 November 2018

To,

The Chairman

National Human Rights Commission

Manav Adhikar Bhawan

Block-C, G.P.O Complex, INA

New Delhi-110023

Respected Sir,

I have received the direction of the commission through the letter dated 28.08.2018 in connection with the above referred case. The Commission closed the case on the basis of the police report and gave much reliance on the illegitimate self defense made by the BSF authority. I want to submit an open protest letter against the decision of the Commission.

1. It is revealed from the direction letter that the Commission was sure about the gunshot injuries on the person of the deceased. But there are some anomalies in the inquiry report made by the BSF and their complaint at Hili police station. The BSF report stated that HC N Chakraborty fired one round of pump gun shot in right of private defence. But how many number of rounds fired by CT PK Basumatry was not mentioned in the BSF report, but in the complaint at Hili Police Station it was mentioned by BSF that CT PK Basumatry fired 06 rounds from his service rifle.

2. Secondly, regarding the matter of self defense theory upon which the Commission gave much reliance, I think while force used by a state in self defence it must meet the demands of proportionality and there is confusion over the meaning of the term in this jus ad bellum, in this context. May a state that has been attacked use force in order to deter the attacker from mounting further attacks? From the BSF and police report it does not appear that the guidelines issued by the commission in case of encounter death were being followed in this case in their true spirit. Even there was no proper and independent investigation in respect of this case. The following questions which were very much relevant were being rejected by the inquiry authority.

· Whether the killing of the victim was in the legitimate exercise of right to self defense or not?

· Whether the use of force was proportionate or not to the resistance offered?

· Is it believable that a group of BSF trying to arrest a person who was attempting to evade the arrest and since in his attempt to evade the arrest he used force, and the BSF returned the force of and caused the victim's death?

Most joking part of this case is that your authority without sending me full action taken report submitted by Shri Uttam Ghosh, Deputy Superintendent of police, South Dinajpur, closed this case. Even I am debarred from inspecting the post mortem examination report and inquest report of the deceased victim. In this way without giving me any chance to comment on the report, the Commission closed the whole matter to relief themselves from the burden to extend justice. Is the supreme human rights protecting agency has any right to snatch making comments and observations over the reports submitted by the perpetrators in unison?

There are certain general principles on the effective prevention and investigation of extra judicial, arbitrary executions. The principles so framed by the UDHR are intended to guarantee independence while investigating state killings and help in preventing potential abuse, corruption, ineffectiveness and neglect in investigation.

This is a clear case of violation to the guidelines issued by the Commission in case of encounter deaths and violation of order passed by Director General of BSF upon his command force- "not to use lethal weapon at Indo- Bangladesh border".

Is NHRC presently rejected its own guidelines framed earlier on extra judicial killings? Is NHRC now justifying action taken by the trigger happy BSF?

While the United Nations Code of Conduct of Law Enforcement Officers (which includes all officers of law, who exercise police powers) lays down that in the performance of duties, Law enforcement officers shall respect and protect human dignity and maintain and uphold human rights of all persons, Your office without looking any facts or laws closed the case only relying the self defence theory made by the BSF, which is full of falsification and to shield a heinous crime committed.

This case is a very important one. Closing the case is not a solution towards the victims irrespective of their citizenry identity deserves right to life in accordance to the Article 21 of Indian Constitution. I appeal to your authority for strict implementation of the guidelines issued by the Commission in case of encounter death thereby extra judicial killings are properly and independently investigated so that proper justice may be done.

Hence, I appeal to reopen the case.

Sincerely Yours,

Yours truly

Kirity Roy

Secretary, MASUM

Kirity Roy
Secretary
Banglar Manabadhikar Suraksha Mancha
(MASUM)
&
National Convenor (PACTI)
Programme Against Custodial Torture & Impunity
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[IAC#RG] NHRC case no. 692/25/13/2018 - Objection - Victim Minor boy - Perpetrator BSF - NHRC closed the case upon police report - Police & BSF nexus.

Date: 5^th November, 2018

To,

The Chairman

National Human Rights Commission

Manav Adhikar Bhawan

Block-C, G.P.O Complex, INA

New Delhi-110023

Reference: Your communication dated 11.10.2018

Original Complaint dated 18.04.2018

In connection with NHRC case no. 692/25/13/2018

Respected Sir,

In connection of the above referred case, the Commission sent one email communication dated 11.10.2018 to the complainant disclosing that the Commission closed the case.

The complainant is deeply aggrieved with the decision of the Commission and therefore, I beg to submit the present open letter of protest against the decision of the Commission.

In the direction issued by the Commission through the email on 31.08.2018, it is revealed that the Commission gives much reliance on some points for closing the case which are:-

(i) A report dated 31.07.2018 has been filed by the SP, Murshidabad and from there it was reported that a case no. 71/18 dated 06.02.2018 u/s 325/34 IPC PS Raninagar which was also ended in FRMF being Raninagar PS FRMF no. 139/2018 dated 23.03.2018.

(ii) From the report it was stated that the victim never visited the police station with any grievances, neither did he made any complaint to the commission.

(iii) Since the IO has investigated the case and submitted a final report in the matter, no further intervention of the commission is required.

I want to submit my protest one by one following the above points.

1. Firstly, after occurring the fateful incident, the family of the victim boy went to Raninagr Police Station for lodging complaint against the perpetrator BSF personnel, but the police refused to take complaint. On 19.01.2018 the mother of the victim boy sent a written complaint through registered post to the Superintendent of police, Murshidabad stating the incident and the same was delivered to the office of the SP, Murshidabad on 23.01.2018 but the victim's family did not receive any information from the police authority till date. But in your communication dated 11.10.2018 it is reported that a case no. 71/18 dated 06.02.2018 which was also ended with FRMF vide Raninagar PS FRMF no. 139/2018 dated 23.03.2018. I am totally in dark about some questions:

· Who is the complainant in this case where it is stated the victim never visited the police station?

· Did anyone inform the victim about the complaint made in connection with him?

· Who is the Investigating Officer?

· How did he investigate the case?

· Did he record the statement of the victim and the witnesses?

· What action he was taken against the perpetrator?

· Where in various cases of serious natures, there is high delay in the investigation procedure, why within one month in this case final report has been submitted?

2. Secondly, the Commission held that the victim never visited the police station with any grievances and he did not make a complaint to the Commission. This allegation against the victim is not true. Previously I told it that the family of the victim went to Raninagar PS to lodge a complaint against the perpetrator BSF personnel but the police refused to take complaint. After that on 19.01.2018 the mother of the victim sent a written complaint to the SP, Murshidabad. So, the family of the victim repeatedly made complaint but authority remains in action less manner.

In the matter where the Commission questioned over that the victim did not make a complaint to the Commission. I again tell that your office does not give an active eye on the Protection of Human Rights Act, 1993 which is the guiding book. Section 12 of the above said Act clearly tells that the Commission shall perform any acts or inquire into the matter either suo moto or complaint by the victim or a complaint made on behalf of the victim. For your sightless eyes I again inform you that on behalf of the victim boy Master Sahajamal Seikh, the then secretary of MASUM Mr. Biplab Mukherjee submitted a written complaint to your authority on 18.04.2018.

3. Thirdly, it is known to me that NHRC is a quasi judicial body who always try to protect the rights of human beings when it is infringed by the authority of the Government. It is completely strange to me what is the relation of submitted the final report by the IO with the closing of the case by the Commission? From the direction of the Commission it is known to me that the investigating officer submitted FRMF in respect of this case vide PS FRMF no. 139/2018. FRMF is submitted where informant filed unlike form of the case than what was truly happened. Cases must not be reported as false unless they are clearly so. Mere probability will not suffice. In this case the investigating officer acts as a mere post office. Moreover, this is the case where the right of protection of a child against any kind of torture under the present National and International laws were violated by the BSF personnel. The Commission should not be rejected the case just based on a mere scrap of paper. The present act of the Commission denies the right to fair access to justice of the victim.

Moreover, the vital question is why does the Commission deny me to see the report submitted by the investigating officer of this case? And why it closed the case when your office did not send any investigation report to me?

Updated Information

Now on 06.07.2018 a notice was issued by the SDPO, Domkol to the victim boy Sahajamal Seikh and other two eye witnesses Saddam Molla son of Rajjak Molla and Mani Sk son of Allauddin Sk both are residing in Katlamari, Murshidabad to appear before his office on 10.07.2018 for enquiry of the case. The notice send by the SDPO to the victim boy is nothing but a gross violation of existing law of our country. Under Section 160(1) of Cr.P.C it is clearly laid down "no male person under the age of fifteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides." The victim boy who is just 14 years old and a student of class IX, out of fear complied the notice but as the SDPO was absent that day, one police officer named Debashis babu called them into his room and took several documents from their hands. After hearing the case they were forcefully signed on some blank papers by the above named officer and also given threat to brazen their name in criminal cases. These acts of the police personnel are derogative to the rule of law. Under Section 163(1) of Cr.P.C, no police officer or other person in authority shall offer or make or cause to be offered or made, any such inducement, threat or promise in the course of enquiry or investigation. In Nandini Satpathy vs. P.L.Dani (AIR 1978 SC 1025) the Apex Court held that any person cannot be coerced or influenced into giving a statement.

On 12.09.2018 mother of the victim boy Ms. Tagara Bibi w/o Lalchand Sk, of Katlamari, Murshidabad sent a letter to the Superintendent of Police, Murshidabad complaining about the alleged police officer of Raninagar Police Station who threat them during the enquiry process and made a signed blank paper by them. But as usual no steps are taken.

The above mentioned narrative confirms the fact that the victim is now living a horrendous life. The police have not started any proceedings against the perpetrator B.S.F personnel and in other way maintain the unholy nexus between the two agencies in bordering district. The basic citizenry rights are continuously violated in such cases. It is a case where victim and witnesses of the brutal act upon 14 years old boy by B.S.F are forcefully bound to sign and asked for redressal by the police authority in association with the perpetrator.

Therefore, I request before your good authority to kindly send me the report of the investigating officer in detail, so that I would be able to furnish my comments on the report and Under the circumstance I request the Commission to accept the present letter as part of my complaint dated 18.04.2018 in the matter of the victim and pass necessary direction so that the victim and his family members could be provided adequate protection of law and they can pursue the hunt for justice against the perpetrator B.S.F personnel in a fearless and biased environment.

I know you already closed the case upon police report. Still it is my duty to inform you the cases of violation of human rights. Hence this is the updating of previous victim.

Your kind action in this matter would be highly solicited.

Thanking you,

Yours truly

Kirity Roy

Secretary, MASUM

National Convener, PACTI

Mobile (0) 9903099699
e. mail : kirityroy@gmail.com
Web: www.masum.org.in