India: Armed Robbery By Police in West Bengal

Asian Human Rights Commission – Urgent Appeals Programme
Urgent Appeal Case: AHRC-UAC-236-2011

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18 November 2011

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INDIA: Armed robbery by police and security agencies in West Bengal

ISSUES: Torture; inhuman treatment and punishment; corruption; impunity
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information from MASUM, a human rights organisation working in West Bengal, concerning the case of armed robbery by the state police and the security agencies operating in the state on the pretext of anti-Naxalite operations. It is reported that a team of armed police officers and the members of the Joint Task Force - a team constituted in West Bengal to counter Maoist/Naxalite activities - forced into the house of Mr Khokan Mahato, assaulted him and his friend Mr Biswajit Mahato, took them into custody and in the process have also stolen gold ornaments and money from the house. The police did not inform why the two persons were arrested and where they would be taken. The incident happened on 19 October 2011.

CASE NARRATIVE:

On 19 October, in the morning the victim Khokan Mahato was working inside his house to build the mud roof of the house. Biswajit Mahato was helping Khokan at the time. At about 11am some police personnel from Jhargram Police Station and the officers attached to the Joint Task Force arrived at the house and demanded to conduct a search in the house to see whether there are any suspected members of 'Maoist/Naxalite' group in the house.

Without any warning the officers arrested Khokan and Biswajit. Then they dragged Khokan and Biswajit outside the house. Then they started assaulting Khokan without any warning. The officers punched and assaulted Khokan brutally at the village road in full view of the villagers and that of his family members. In the meantime some officers entered the house and started ransacking the cupboard and other boxes kept inside the house. It is alleged that the officers took away one gold earring, one silver necklace, a pair of silver Tora and Rs. 3000. The police officers and the Joint Task Force went away with Khokan and Biswajit in their vehicle. Before they left, the family members asked the police the reason for the arrest of Khokan and Biswajit and as to why they are taking the ornaments and money from the house. But the officers refused to provide any information and shouted at the family asking them to remain silent. The officers also refused to serve any arrest memo or recovery memo to the family as required in law.

On 20 October the family went to Jhargram Police Station to meet Khokan and Biswajit. But the officers did not allow the family to either enter the station or to meet their relatives. The officers however informed the family that Khokan and Biswajit are not held at the station. Then the family members of the victims went to Jhargram Court to look for Khokan and Biswajit thinking that they might be produced in the court. Upon enquiry they found that the police have not produced Khokan and Biswajit in the court on that day. Then the family went to the office of the Sub-Divisional Officer at Jhargram and complained to the officer about the illegal detention of Khokan and Biswajit at Jhargram Police Station.

On 23 October the Jhargram police produced Khokan and Biswajit before the Additional Chief Judicial Magistrate (ACJM) court accusing them a criminal case vide Jhargram Police Station Case no. 99/2011 dated 2 April 2011, for offenses punishable under sections 341/302/34 of the Indian Penal Code, 1860 and section 25 and 27 of the Indian Arms Act. Police also filed in court a statement, allegedly obtained from the accused while they were in police custody. Upon production of the victims at the court, the police requested for their custody and the court allowed police custody of the victims for seven days.

ADDITIONAL INFORMATION:

In addition to the prohibition against torture, the police is required to prepare seizure memos when they recover any article, irrespective of its material value. The memo, like the mandatory arrest memo must be signed by the recovering officer and should be witnessed. The police often fail to prepare both these memos at the time of arrest and recovery when they have a malicious intention. Arrest memo is refused, when the police wish to keep the arrest not recorded and plans to detain the person in illegal custody. Recovery or seizure memos are often not prepared when the police plan to tamper with the articles or evidence, or as in this case, to keep the valuables for themselves. This is a pattern that the AHRC has observed across India. The local police enjoy considerable extent of arbitrary and illegal authority, and due to lack of accountability and disciplinary mechanisms impunity, among the local population. Impunity is near to absolute when the community is poor as it is the case. In addition to the denial of preparing an arrest memo and seizure memo, the police also have breached the law by keeping the detainees in illegal detention for more than the period allowed by the statute. In advanced jurisdictions where the law and order is respected and followed, the incident is nothing but armed robbery.

Section 390 of the Indian Penal defines robbery as follows:
390. Robbery.--In all robbery there is either theft or extortion.
When theft is robbery:

When theft is robbery--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
The provision of law is self explanatory and the officers involved in the case must be punished for committing an offence under Section 390 of the penal code.

SUGGESTED ACTION:

Please write to the authorities listed below asking for their urgent intervention in this case.

The AHRC is also writing a separate letter to the UN Special Rapporteur on Torture and other cruel, inhuman or degrading treatment or punishment seeking an intervention in this case.

To support this appeal, please click here:

SAMPLE LETTER:

Dear __________,

INDIA: The case of armed robbery and torture of two persons in Ghritagram village of Paschim Medinipur district in West Bengal must be investigated

Name of victims:

1. Mr Khokan Mahato alias Dibang Mahato, son of Bhabesh Mahato, aged about-25 years;
2. Mr Biswajit Mahato, son of Sanatan Mahato, aged about- 30 years;
Both are residing at Ghritagram village, under the jurisdiction of Jhargram Police Station, Paschim Medinipur district, West Bengal

Names of alleged perpetrators:

1. The Officer-in-Charge of Jhargram Police Station;

2. Police constables stationed at Jhargram Police Station;

3. Officers attached to the Joint Task Force who raided the house of the victim on 19 October 2011

All of the officers could be identified on appearance

Date of incident: 19 October 2011

Place of incident: At the residence of victim number (1) above
I am writing to express my concern regarding yet another case of torture, inhuman treatment and armed robbery meted out against innocent civilians by the state police and the members of the Joint Task Force stationed in West Bengal.
On 19 October, in the morning the victim Khokan Mahato was working inside his house to build the mud roof of the house. Biswajit Mahato was helping Khokan at the time. At about 11am some police personnel from Jhargram Police Station and the officers attached to the Joint Task Force arrived at the house and demanded to conduct a search in the house to see whether there are any suspected members of 'Maoist/Naxalite' group in the house.

Without any warning the officers arrested Khokan and Biswajit. Then they dragged Khokan and Biswajit outside the house. Then they started assaulting Khokan without any warning. The officers punched and assaulted Khokan brutally at the village road in full view of the villagers and that of his family members. In the meantime some officers entered the house and started ransacking the cupboard and other boxes kept inside the house. It is alleged that the officers took away one gold earring, one silver necklace, a pair of silver Tora and Rs. 3000. The police officers and the Joint Task Force went away with Khokan and Biswajit in their vehicle. Before they left, the family members asked the police the reason for the arrest of Khokan and Biswajit and as to why they are taking the ornaments and money from the house. But the officers refused to provide any information and shouted at the family asking them to remain silent. The officers also refused to serve any arrest memo or recovery memo to the family as required in law.

On 20 October the family went to Jhargram Police Station to meet Khokan and Biswajit. But the officers did not allow the family to either enter the station or to meet their relatives. The officers however informed the family that Khokan and Biswajit are not held at the station. Then the family members of the victims went to Jhargram Court to look for Khokan and Biswajit thinking that they might be produced in the court. Upon enquiry they found that the police have not produced Khokan and Biswajit in the court on that day. Then the family went to the office of the Sub-Divisional Officer at Jhargram and complained to the officer about the illegal detention of Khokan and Biswajit at Jhargram Police Station.

On 23 October the Jhargram police produced Khokan and Biswajit before the Additional Chief Judicial Magistrate (ACJM) court accusing them a criminal case vide Jhargram Police Station Case no. 99/2011 dated 2 April 2011, for offenses punishable under sections 341/302/34 of the Indian Penal Code, 1860 and section 25 and 27 of the Indian Arms Act. Police also filed in court a statement, allegedly obtained from the accused while they were in police custody. Upon production of the victims at the court, the police requested for their custody and the court allowed police custody of the victims for seven days.
In addition to the prohibition against torture, the police is required to prepare seizure memos when they recover any article, irrespective of its material value. The memo, like the mandatory arrest memo must be signed by the recovering officer and should be witnessed. The police often fail to prepare both these memos at the time of arrest and recovery when they have a malicious intention. Arrest memo is refused, when the police wish to keep the arrest not recorded and plans to detain the person in illegal custody. Recovery or seizure memos are often not prepared when the police plan to tamper with the articles or evidence, or as in this case, to keep the valuables for themselves. This is a pattern that the AHRC has observed across India. The local police enjoy considerable extent of arbitrary and illegal authority, and due to lack of accountability and disciplinary mechanisms impunity, among the local population. Impunity is near to absolute when the community is poor as it is the case. In addition to the denial of preparing an arrest memo and seizure memo, the police also have breached the law by keeping the detainees in illegal detention for more than the period allowed by the statute. In advanced jurisdictions where the law and order is respected and followed, the incident is nothing but armed robbery.

Section 390 of the Indian Penal defines robbery as follows:

390. Robbery.--In all robbery there is either theft or extortion.

When theft is robbery:

When theft is robbery--Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint.
The provision of law is self explanatory and the officers involved in the case must be punished for committing an offence under Section 390 of the penal code.

I therefore request you to:

1. That a judicial officer records the statements of the victims and witnesses in the case;

2. That if the statement reveals that the incident has happened as alleged, the officers immediately arrested as the crime they have committed does not call for the statutory protection available to government officers since torturing; illegally detaining a person; and robbery are not "act of duty";

3. That the victims provided immediate medical treatment and compensation;

4. That the state as well as union government takes all necessary actions to undertake an independent investigation into the case;

5. That the state government provide all necessary protection to the victims as well as the witness in the case.
Yours sincerely,
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PLEASE SEND YOUR LETTERS TO:

1. Ms. Mamata Banerjee
Chief Minister
Government of West Bengal
Writers' Buildings, Kolkata - 700 001
West Bengal
INDIA
Fax: +91 33 2214 5480 / 2214 1341
Email: cm_wb@nic.in

2. Mr. Samar Ghosh, IAS
Chief Secretary
Government of West Bengal
Writers' Buildings, Kolkata - 700001
West Bengal
INDIA
Fax: +91 33 2214 4328
Email: chiefsec@wb.gov.in

3. Mr. G. D. Gautama, IAS
Additional Chief Secretary (Home)
Government of West Bengal
Writers' Buildings, Kolkata - 700001
West Bengal
INDIA
Fax: +91 33 22143001
Email: sechome@wb.gov.in

4. Mr. Naparajit Mukherjee, IPS
Director General & Inspector General of Police
Government of West Bengal
Writers Buildings, Kolkata-1
West Bengal
INDIA
Fax: +91 33 2214 4498 / 2214 5486
Email: dgp_westbengal@gmail.com

5. Mr P. Chidambaram
Home Minister
Government of India
Ministry of Home Affairs
North Block, New Delhi 110003
INDIA
Fax: + 91 11 23093750 / 23092763
Email: hm@nic.in

Thank you.
Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)

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