C H A P T E R   -   1 4

P R O S E C U T I N G   T H E   O F F E N D E R

Most of the widows who appeared before the Commission as witness had a common grievance that the persons who looted their houses set them on fire, killed their husband, children and near relations and brutally assaulted them as also on occasions outraged their modesty, were not being prosecuted . They had the obsession that the killers were free on the streets and were even in a position now to jeopardise their security. When the commission was set up and it became palpable that the incidents of the riot period would be scrutinised in the inquiry, these very villains started threatening the widows and other deponents as also people of the Sikh community with dire consequences in case they came forward to file affidavits, give evidence or did any such thing or took such action which might involve them either in proceeding before the Commission or in criminal action. In many of the affidavits there has been clear indication of the failure of the administration to prosecute the culprits and demand of appropriate prosecutions and due punishment to be awarded to the persons involved in the crimes. The desire to punish is deeply ingrained in man. Law is said to be a regulator of human conduct and those who do not behave according the set pattern of society and thus commit crimes expose themselves to the process of law. the sharp teeth of law are supposed to bite the deviators. Punishment as deserved for any offence is regarded as retribution; others would regard it as a means of controlling action, i.e. as determent or prevention; still others would regard it as a means of producing some form of moral or psycho-social regeneration, i.e. as reform or rehabilitation. Whether punishment is based upon the considerations of retribution, determent or reform, unless the wrong-door is punished, the social fabric is bound to lose its grip over the people living in the community an both fear and respect for law are bound to diminish. Adam Smith once pointed out that punishment of the wicked is deeply rooted in human instinct and perhaps what the widows and relations of the victims have demanded before the Commission is based upon that. Karl Marx was also right when he said :

"Plainly speaking and dispensing with all paraphrases, punishment is nothing but a means of society to defend itself against the infraction of its vital conditions whatever may be their character."

This statement of Marx has the approval of jurisprudence writers. Punishment occurs when the rules are broken and as long as rules exist so shall punishment.

Crime will always remain with us and unless law maintains its grip effectively, the fear of punishment would die out and punishment and law shall cease to have the quality of determent. An anonymous tract written in 1546 ran thus :

" Many thousands of us much here before lived honestly upon our sore labour and trivail bringing up our children in the exercise of honest labour, are now constrained some to beg, some to borrow, and some to rob and steal. And that which is most likely to grow to inconvenience, we are constrained to suffer our children to spend the flowers of their youth in idleness, bring them up to bear beggars, packs or else, if they be sturdy, to suffer prisons and garnish gallow trees........."

In the centuries that have rolled by since the tract was written, society has faced new challenges.Accepted norms have vanished, living pattern has become complicated, competition has increased hundred fold and tolerance has become a thing of the past. In order that the community may be held together strict vigil over lapses and enforcement of law have become necessary. The Commission is inclined to agree that unless the wrong-doers are punished appropriately in accordance with law, apart from the fact that the victims will go totally unsatisfied and this social failure will lurk in their minds for years to come and is likely to be misunderstood as a treatment of partially,the wrong-doers would feel encouraged and get emboldened to took forward to fish in troubled waters. It is,therefore, necessary and the Commission is of the firm opinion that every wrong-doer should be punished in accordance with law and every victim should have the satisfaction that the wrong done to him/her has been avenged in terms of, and according to the scales of justice. Where the community machinery fails to avenge, private enterprise start. This again has a very detracting force on society and its control and no room for that should be left.

Elsewhere the commission has dealt with the number of incidents in a classified way. The Commission has also held that during the period of riots, the roioters had their way and the administration had failed to exercise adequate control. Such a tense and panicky situation prevailed that it became difficult for the victims to approach the police for lodging first information reports. It is a fact and the Commission on the basis of satisfaction records a finding that first information reports were not received if they implicated police or any person in authority and the informants were required to delete such allegations from written reports. When oral reports were recorded they were not taken down verbatim and brief statements dropping out allegations against police or other officials and men in position were written. Several instances have come to the notice of the Commission where a combined FIR has been recorded in regard to several separate incidents. For instance, where a large mob came, got divided into groups and simultaneously attacked different houses and carried on different types of operations in the different premises, they as a fact did not constitute one incident; yet only a common FIR has been drawn up. Recording in brief narrative the incident in a common FIR, would not provide a sound basis for a proper prosecution. Tagging of so many different incidents into one FIR was bound to prejudice the trial, if any, as also the accused persons, if called upon to defend themselves in due course. The Commission has noticed on several occasions that while recording FIRs serious allegations have been dropped out and though the case was in fact a serious one, in view of the dropping out of the major allegations, a minor offence was said to have been committed. The Commission was shocked to find that there were incidents where the police wanted clear and definite allegations against the anti-social elements in different localities to be dropped out while recording FIRs. Unless the police were hand in glove with the anti-social elements in their respective localities they would not have behaved that way.

The sum total effect of this has been that proper FIR's have not been recorded. There has been initially some delay in lodging/recording of FIR's on account of the fact that during the period of riots what was of primary importance for the victims was to run away from the scene and conceal from notice of the rioters so as to escape certain death. In several instances those who had not been massacred were picked up either by police or Army personnel or through other agencies or by their own efforts and shifted to Relief Camps where they were maintained for some time. Semi-normal conditions returned in different localities within 3-4 days but confidence took time to get restored and, therefore , until the victims returned to their localities quite some time after, in most of the cases they did not know what exactly had happened, so as to make a full report ; nor did they know as to who exactly had died or got assaulted . There have been several instances where the lady went one way and found herself in one Camp while the children went elsewhere and ultimately got lodged in a different Camp . Being terror-striken each one ran for his or her life oblivious of what happened to others of the family . When they reached Relief Camps there was no scope for renewing contacts unless by chance they were in one common camp and until they met or re-assembled under a common roof each one was unaware of the continued existence of the other . Only when they came back to their respective localities , scope for lodging of FIRs came . The Commission did come across instances where some FIRs were recorded in a Relief Camp but these were comparatively few . The delay in lodging of FIRs could , therefore , be reasonably explained . If properly explained , many of the lapses in the FIRs may also become acceptable .

In many cases there has not been a proper investigation . The Commission checked up records of investigation of different classes of cases at random and came to find that the investigations were usually perfunctory and most of them had not been duly supervised even though they involved allegations of serious crimes . In view of the fact that bulk of dead bodies , particularly in Delhi and kanpur had been burnt soon after the incidents , all postmortem reports were not available . Want of postmortem in such circumstances could not be used as a ground against the prosecution . The final reports submitted in these cases , particularly in regard to offences of murder , looting and arson should be reopened and further investigation undertaken as provided in s. 173(8) of the Code of Criminal Procedure . In regard to the graver offences the limitation prescribed under s. 468 , Cr.P.C. has no application, sufficient discretion also vests in the criminal court under s. 473 , Cr. P.C. to deal with situation arising in particular cases .

Most of the cases have ended in final report and a few have been charge-sheeted. Separate detailed statements for the three places under inquiry are already appended in Vol. II at respective places from which the total number of FIRs lodged , investigation undertaken , final reports or charge-sheets submitted , number of criminal cases instituted , etc. would be available . Apart from this , the Commission has collected the data of pending cases at all the three places and even verified about half of the records thereof . Detailed lists of pending cases at the different places are to be found in Vol. II of this Report . It would appear that in regard to the incidents at Bakaro the dereliction of the police is comparatively minimum . Most of the FIRs are detailed and facts which have been stated in the affidavits more or less appear to have been reflected in the reports . There has been some amount of independent investigation and the ratio of cases where charge-sheets have been filed to final reports is comparatively high . Some of the cases have also proceeded for trial notwithstanding the fact that in Bihar criminal trial take a long time even to begin . The Commission came across instances where the charge-sheets required reforming and the committal order required modification at the stage of the commencement of the trial in the Court of Sessions . This in law is permissible as the trial judge has to frame his own charges or can even alter the charges framed by him . The Commission also came across instances where the assistance of lawyer given to the prosecution was not qualitative . In the course of sitting at Bokaro the Commission had suggested to the learned Advocate-General of Bihar who represented that state that instruction should be issued to the Public Prosecutor to ensure that either he personally handled these cases or a capable prosecuting counsel should be engaged in every case and instructions should be given to such counsel or to the Director of Prosecutions or some other authority handing that job to look into the records and find out whether different sets of charges were to be framed on the basis of the material on record . The learned Advocate-General had assured the Commission that appropriate instructions would immediately be given . A return of compliance along with various orders and directions made by the State Government has been filed . The Commission hopes and trusts that the directions shall be implemented to the fullest extent .

The Commission found that at Kanpur the FIRs were not properly taken down and in many cases common FIRs had been recorded . Similar defects as found at Bokaro were also noticed . During the hearing of oral arguments when the Commission pointed out these aspects , Mr. Giridhar Malaviya appearing for the State of U.P. agreed that necessary steps would be taken and , therefore, the Commission had recorded the following order :

"In the course of submissions made by Mr. Malaviya on behalf of the State Government , the question as to the investigations launched on the basis of the First Information Reports lodged by the victims came up for consideration . The Commission pointed out to Mr. Malaviya that the investigations seem apparently not to have been properly done and the follow up action has also not been properly supervised . Mr. Malaviya agreed that there is scope for such a view and assured the Commission that State Government would take prompt action in the matter of moving the appropriate courts for re-opening of the investigations as provided under the Code of Criminal Procedure and in all appropriate cases such applications would be made , orders obtained and when permitted by the Court , due investigation will be conducted and all follow up action would be taken . Proper lawyers competent to handle these litigations will also be engaged . Mr. Malaviya has further agreed that a Committee consisting of at least three competent people will be set up to supervise and oversee these steps . The Commission expects that the State Government would appoint an appropriate Committee for the purpose . Mr. Malaviya has agreed that the Commission shall be informed of all action taken in this regard by May 31, 1986, so that this aspect may be properly reflected in the Report of the Commission."

In the written arguments furnished on behalf of the State of Uttar Pradesh the fact that the proposed Committee has already been constituted has been disclosed . Shri Malaviya appearing before the Commission subsequently also stated that the Committee has started functioning . The Commission records a recommendation on the same line as in regard to cases at Bokaro for the prosecutions at Kanpur.

Coming to these aspects of cases at Delhi, the picture is very grim and the Co mmission is inclined to agree with the victims that the major part of the responsibility must be shared by the police. While at Kanpur a number of cases have been charge-sheeted and trial thereof is pending, in Delhi most of the cases were closed by final report and the few cases where charge-sheet has been sent up ( details of which appear in the Appendix ) , not much of progress appears to have been made except in a few. The police released most of the accused persons on bail at its level and those who were challenged to the court in custody have been released by the Court. There has been obviously no effective opposition in the matter of grant of bail nor has the order of release on bail been challenged in judicial proceedings in higher courts.

The criminal activity in Delhi apart from being widespread and in greater intensity exhibited a varied spectrum of human conduct. This requires thorough investigation and careful handling. The same police who remained ineffective during the riots and against whom several allegations were advanced whether recorded or not, were the investigating agency in respect of the FIR's. The Commission finds it not difficult at all to appreciate and accept the contention of the victims that in such circumstances proper investigation could not be expected. Since the number of deaths is considerably great and there have been number of other grave offences committed, it is necessary that the allegation should be properly looked into and investigations suitably monitored. This will mean fresh or further investigations and review of all actions subsequent thereof. For this purpose since the volume of work is quite heavy, a Committee of at least two officers - one judicial and one administrative , preferably a high ranking police officer from outside Delhi - should be appointed immediately with full authority to look into the papers and give such directions to the prosecuting agency as the facts of each case would warrant . Since there has been a lot of delay in attending to these prosecutions and as further delay would prejudice proper trial and also the prospect of justice being done, it is necessary that expeditious steps should be taken to implement these aspects.

A list of seventeen cases has been supplied by the Committee in its written arguments wherein Sikhs are accused of different offences. The note appended shows that the list is not complete and there may be some more cases pending. It is the stand of DSGMC that some of these cases were baseless, on embellished allegations; innocent people have been roped in and while the aggressor has gone scot free, those who defended themselves in exercise of their right of private defence of person or property have been subjected to the clutches of law. Since the cases are pending trial, the Commission considers a totally improper to deal with them on merit or express any opinion which might embarrass their trial. The Commission, however, is of the view that recommended Committee should be asked to look into these cases and if there be any prosecution which is not justified by the test of normal norms, the same should, in the interest of justice,be withdrawn by the Delhi Administration.