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Police have abdicated their powers

Tuesday, 15 January 2013 - 5:42am IST | Place: Mumbai | Agency: dna

The rape of a minor girl by a habitual offender gives rise to two important questions.

The rape of a minor girl by a habitual offender gives rise to two important questions. First, how are such offenders allowed to escape from the clutches of the law, and second, what is to be done with such persons who are a  risk to others but are yet to be charged with a crime.

It is an unfortunate reality that the performance of the police is often governed by what is fresh and happening, rather than by what has happened. Therefore, while under the criminal justice system the process of detection and investigation of a case is of as much importance as the trial, during the trial the role of the police gets substantially undermined.

During the trial of the case, the investigating officer of the police has to serve summons, ensure that the witnesses appear in time and that all the evidence of the case is presented properly in court. In addition, the police also have to ensure that no witness disappears due to extraneous influences, deposes incorrectly or turns hostile. It is also of utmost importance that the investigating officer is  present on the dates of the trial and does not absent himself.

However, the actual situation is quite often very different. A large number of critical witnesses are dropped because the police are unable to produce them. Senior officers are too caught up with day-to-day priorities, like the media-sensitive cases being investigated, neighbourhood the law and order affairs and the movement of VIPs. The same with investigating officers. Thus, the trials of ongoing cases suffer.

It is precisely this low prioritisation coupled with corruption that sounds the death knell of the case, and this is why perpetrators of rape and murder get acquitted in the courts.
Now to the second question. If a habitual offender is acquitted by the court or serves his sentence, are any steps taken to ensure that society is protected against any possible future misconduct of the individual? This is precisely what happened in the Shirdi rape case, where a minor was raped and killed by a habitual offender on December 28.

In the Code of Criminal Procedure, 1973, a scheme of preventive action has been put in place to tackle such situations. Under section 106, if the court is likely to convict an accused, the accused on his release is required to sign a bond of good behaviour for a period of up to three years. Similarly, if there is a suspicion that a past convict or accused will indulge in crime, he too can be ordered to sign a bond of good behaviour.

An enormously versatile feature of these provisions is that when signing the bond the police can insist on cross sureties. For instance, in the case of a potential rapist, the police can insist on having a woman activist of repute as surety. If the accused cannot get such sureties, he can be placed under preventive detention.

It is unfortunate that senior police officers, who are more often than not caught up in a ball game of their own, pay little heed to the considerations of the trials of cases, and that they even ignore necessary preventive action. Although vested with powers that allow them to substantially control such cases, the police have abdicated these powers that could be used to protect people, like the minor girl in Shirdi.

(The author is a former IPS officer and now a practising lawyer.)

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