Gauhati High Court admits 'suo moto' PIL on mob lynching
GUWAHATI: Expressing grave concern, the Division Bench comprising Chief Justice, Ajit Singh and Justice Achintya Malla Bujor Barua, today i.e., 13-06-2018, suo moto admits a PIL in regard to the shocking and barbaric incident that took place, where a mob lynched two youths on 08-06-2018 at about 07:30 PM at Panjari village under Dokmoka Police Station in the district of Karbi Anglong, Assam.
The High Court issued show cause notice to the State Respondents. In the PIL the Chief Secretary as representative of the State, Principal Secretary of Home & Political (B) Department, Director General of Police, Deputy Commissioner of Karbi Anglong, Superintendent of Police of Karbi Anglong and Officer In-charge of Dokmoka Police Station are arrayed as party-respondents.
On the next date fixed for the further hearing of the PIL on 19-06-2018, the State respondents shall be required to inform the High Court what effective measures have been taken to arrest the wrongdoers and also to inform what action has been taken against the erring Officials.
Before it, the PIL Committee of the Gauhati High Court comprising of Justices Ujjal Bhuyan, Manas Ranjan Pathak and Monojit Bhuyan met on 12-06-2018 and resolved that a suo moto PIL be registered concerning lynching of the two youths, which has raised resentment and concern amongst the masses of Assam. It was brought to the notice of the PIL Committee of the High Court on the administrative side, about the news items published on 10-06-2018 in the English news dailies, ‘Times of India’ , ’The Sentinel’, ‘ The Indian Express’, ‘The North-East Times’, etc.including vernacular dailies in regard to the horrific incident of lynching of two youths by a mob. Accordingly, the same was placed before the Chief Justice and it was registered as PIL (suo moto) No. 5 of 2018.
The PIL seeks the intervention of the Gauhati High Court in the matter of alarming incidents on “mob lynching” being reported. India being the largest democracy in the world is the outcome of the principle of the rule of law and aspires to establish an egalitarian social order. The success and failure of democracy depend primarily on the extent to which the citizen, in general, enjoys civil liberties. According to the rule of law, no person can be punished without the order of law.
The High Court took judicial notice of this shocking barbaric incident, which has been condemned not only in Assam but throughout the country as well as in foreign news media and rightly so. The Court observed that the State is under a Constitutional obligation to protect the lives of its residents, and sadly in the case at hand, it has failed to do so. The High Court is therefore constrained to take suo moto cognizance of the incident by registering the petition as PIL.
The two youths, Nilotpal Das, 29 years of age was a sound engineer based in Mumbai and the other Abhijeet Nath, 30 years of age was his artist friend who went to a picnic spot at Kangthilangso in the district of Karbi Anglong to capture the sounds of nature. But a fake news was circulated through social media by some miscreants that the victims were child lifters. While returning in their Scorpio vehicle, they were waylaid at Panjari village under Dokmoka P.S. at around 7:30 PM on 8th June 2018 by a group of people. The merciless mob attacked and murdered the youths in a most gruesome and barbaric manner, suspecting them to be child lifters. Although the two youths were taken to the hospital, they were declared brought dead. Both the youths were in their casual outfit, and one of them had dreadlocks (in Sanskrit ‘Jata’) or long braided hair.
Another PIL in respect of the same issue was also filed by a lady advocate of the Gauhati High Court in-person, which was tagged along with the suo moto PIL and registered as PIL No. 38 of 2018.
In regard to this incident till date, as many as 32 miscreants have been arrested including the prime accused Alphajoz Timung, who had incited the mob in killing the two boys. Senior Police Officials headed by the Additional Director General of Police (Law & Order) Mr Mukesh Agarwala, is camping at the place of occurrence and supervising the investigation. Police have also arrested around 35 persons, including five from Guwahati for posting and spreading hate news in social media.
It has already been reported that a ‘cyber dome’ has been activated to deal cyber threat resilient ecosystem and make the State police more responsive and tech savvy. A dome is a centre of excellence in cyber security and technology augmentation for effective policing. A cyber dome makes collection coordination among government departments and agencies, academia, research groups, NGOs and ethical hackers. The dome will have facilities to deal with cyber crimes, forensics, and social media monitoring cell, similar to Kerela police. According to the Crime in India 2016 report of the National Crime Records Bureau, Assam had the fifth highest number of cybercrime cases among the States with 696 cases reported in 2016. This was over 44% increase on the 483 cyber crime cases reported in 2015. Sources said that the State has decided to have a social media monitoring unit to prevent the spread of rumours and use of social media for the spread of militancy.
In the meantime, the Karbi Anglong Autonomous Council (KAAC) has decided to install statutes of Nilotpal Das and Abhijeet Nath at the place of occurrence, as a mark of respect for the victims. Announcing this, the Chief Executive Member (CEM) of KAAC, Tuliram Ronghang, also declared that the Council would extend a sum of five lakhs each to the families of the deceased as ex-gratia compensation (which means payment without accepting any liability of the State).
Conscientious circle have also raised concern that the charge-sheet of killing of Jhankar Saikia at Diphu town of Karbi Anglong, in front of policeman in 2013 by a mob, was filed about one year back and the trial is yet to commence because some of the accused have absconded, as the police failed to submit the charge-sheet within the statutory period of 90 days, thereby enabling the arrested accused persons to obtain bail as matter of right. There is no application filed by the State to put the trial of Jhankar Saikia on a Fast Track Court, outside Karbi Anglong district to avoid threat or intimidation to the witnesses or the witnesses turning hostile, since the accused and most of the witnesses belong to the same area. There is no report of the outcome of the disciplinary action initiated against the erring policemen in front of whom the mob assaulted Jhankar Saikia and his lawyer father Haren Saikia just because for refusing to pay a mere Rs 10 more to an auto-rickshaw driver.
In a similar situation on 05-03-2015, another person from Assam suspected of an offence of rape was dragged out of the Dimapur Jail by a mob, paraded him naked and beat him to death in a case of vigilante justice. The case was handed over to CBI by the Nagaland Government on 19-03-2015, but the same is yet to reach its logical end.
In Assam, many people especially women, are killed by mob branding them as ‘witch’. The Government of Assam formulated a draft bill (The Prevention of and Protection from Witch Hunting Bill,2015) and submitted it before the Gauhati High Court in PIL No. 98 of 2013. An assurance was given on behalf of the State before the Gauhati High Court on 06-04-2015 that by the next Assembly Session steps would be taken by the Government to bring an effective Legislation in this matter. However, till date, the State Government is yet to notify in the Gazette about the implementation of the Act to control the menace of ‘witch hunting’.
In the Cabinet memorandum circulated by the Government, it was noted that the practice of ‘witch hunting’ is also connected to the prevalence of patriarchal attitudes and opposition to women’s rights over property. Further, it was also observed in the memorandum that lack of education and health services have contributed to the continuation of the antiquated practice of branding people as ‘witch’. It is reported that subsequently the said Bill was sent for prior approval of the President of India and later on various anomalies were detected by the Ministries of the Central Government like Home, Social Welfare and Law. Responses were sought from the State Government, but adequate responses were not filed. Till date, the objections in respect of the said Bill are yet to be met effectively, and there is uncertainty about the time when it is likely to be approved by the President.
It is expected from the State of Assam that the investigation of the killing of the two youths may be completed expeditiously without the least possible delay within the period of 90 days. Since most of the witnesses are from the same village where the accused persons reside, the chances of those witnesses turning hostile are very high. The investigating authority should also take steps for recording the evidence of the witnesses before a Magistrate under section 164 of CrPC which can, later on, be used during the trial for corroborating or contradicting the witnesses, if they resile from their earlier statements.
The State Government should post a police picket in the place of occurrence under its witness protection system so that the witnesses are not exposed to any threat or intimidation from the accused or family members of the accused. The Police must also ensure that there is at least one eyewitness who can identify the presence of the arrested accused at the place of occurrence and state in unequivocal terms, the overt acts of the accused leading to the death of the two youths. Weapons of assault like the sticks, etc. are required to be seized and sent for forensic evidence including DNA for matching the blood stains with the deceased victims or in the clothes of the accused. Expert opinion is required to be collected in regard to the process of scientific investigation authenticated by a senior officer. A forensic examination of the clothes of the victims is needed for an expert opinion. Report of the post-mortem must also tally with the weapons of assault and the testimonies of the witnesses. Evidence of the doctor is vital for corroborating the prosecution’s version of attack by the mob.
The other vital evidence, in this case, is the electronic evidence or video clippings, which are required to be produced before the Trial Court in consonance with the provision of Section 65 (A & B) of the Evidence Act, 1872. The authenticity about the clippings, its genuineness and accuracy must be obtained as an opinion from the expert. Even the transcripts of the voice of the accused persons in the clippings should be scientifically examined.
A senior special public prosecutor should be appointed by the State to conduct the criminal trial of this case. If necessary, a transfer application should be moved before the concerned Court for transferring the trial to a nearby district outside Karbi Anglong and to put it on Fast Track Court, on a day to day basis.
Mob violence is on increase; therefore, it can be checked by awarding exemplary punishment in severe form to remind the criminals in the society that human life is very precious and one who dares to take the life of others has to face its legal consequences. Persons behind the scene exhibiting the crime should not go scot-free, but at the same time, the investigating authority shall ensure that no innocent person should be indiscriminately arrested and deprived of his liberty.
In the criminal justice system of the country, the role of the family of the victims is very limited. During the trial, they can only appoint an advocate of their choice to assist the public prosecutor. They remain a mute spectator and can only file an appeal against acquittal or inadequate sentence upon delivery of judgement by the Trial Court.
Many cases in Assam including the murder of the professor of Zoology department of Cotton College, Dr Biva Devi on 17-04-2010 has resulted in the acquittal of the accused persons due to the faulty investigation. The Trial Court in its judgement dated 28-06-2013 while acquitting accused Md. Julhash Ali @ Raju Ali has categorically observed that though the curtain, as well as other materials, were seized, yet the same had not been sent for serological test and the Investigation Officer did not even try to take the fingerprints on the curtain which is allegedly used for gagging the mouth of the deceased. Moreover, the Investigation Officer had failed to examine the vital witness in the case i.e., the service provider and he even did not mention the name of the service provider.
The Investigating Officer also admitted that he did not cite the name of Additional S.P (City)Teron. O/C, Latasil P.S and two other constables as witnesses who were present along with him, when he seized the mobile handset from the accused Raju Ali @ Julhash.
The victim’s family can only hope that the State takes action against the erring police officials for faulty investigation. The Directorate of Prosecution (Assam) is almost non-functional, and in spite of the undertaking of the State to have a regular cadre of public prosecutors, with regular pay scale and fixed tenure, the same is yet to be implemented.
In our State Assam, any citizen is free to move to a place of its choice and any group of persons who tries to restrain it must be dealt with severely. It’s a bad reflection upon the society when people kill another human being suspecting him to be a ‘Sopadhora’ or ‘Diani’.
Our Police force needs to be modernised and people should have faith in its efficacy to deal with crime. If offenders go unpunished or there is a delay in punishing the guilty, people’s faith in the administration of justice is eroded. The comments on social media in regard to the incident in question are a reflection of the people’s anxiety about the role of the police. If there was no media reporting, probably it would have been another registered as a case of murder only.
The protest and rallies by the citizens in regard to the killing of the youths and demand for speedy justice should not be ignored. The Government cannot shirk its responsibility for protecting the life and property of its citizen. It is easy to incite a group of people against another group of persons but one cannot take the law into its own hands. Our social welfare schemes for creating awareness against such rumours have failed. Our education system needs to be relooked because it is seen even today that people are victims of social malice like ‘witch-hunting’. Human life is precious and if it is proved in accordance with the law that the accused is responsible for it, he has to face the punishment. The justice delivery system needs to be expedited so that people have faith in the rule of law.
(As a free thinker the opinion expressed by the writer Mr Bhaskar Dev Konwar, a Senior Advocate of Gauhati High Court, is his personal views only and there is no obligation on any person to subscribe to it. But if you like it you can share it to create awareness amongst the masses).