Mumbai: City lawyer takes state to High Court over change in CrPC

Shailesh Gandhi

A recent amendment to the Criminal Procedure Code (Crpc) has compelled a city lawyer to file a Public Interest Litigation (PIL) in the Bombay High Court against the state government. The amendment that came out in May this year, has clipped the lower court's powers to entertain private complaints against public servants.

Where earlier, if a person had a complaint against a public servant, and if the police did not act on it, the person had the right to approach the lower court and file a private complaint. The court had the power to direct the police to register an FIR and submit a detailed report.

However, under the recent amendment, the magistrate cannot entertain any private complaints against public servants without the approval of the state government, said advocate Rajeshwar Panchal, who has now filed a PIL in HC.

Panchal said, "It is known that the police machinery has always been used by the ruling government, and this latest amendment to the CrPC only deprives the common man of justice." Notably, one cannot directly approach the Sessions court, high court or Supreme Court in such cases.

Advocate Panchal said, "Interestingly, while the new amendment clips the court's powers, it says nothing against the police continuing to use their discretionary powers to decide on whether or not to entertain such a complaint."

In his PIL (copy with this paper) Panchal states, "This amendment to the Criminal Procedure Code, 1973, is against the Constitution of India and defeats the objective of our country to fight corruption. It has accorded unprecedented feeling of impunity to public servants who otherwise are rarely apprehended for their numerous acts of the corruption."

Panchal adds, "The object of the criminal procedure code is to set up a mechanism to ascertain the guilt or innocence of the persons and the code provides the machinery for punishment of offences. An amendment taking away the powers of a magistrate to direct an FIR is like preventing criminal law to be set in motion against offenders."

In the years 1997, 2000 and 2004, the central government had made several attempts to stall this provision in relation to public servants. The Supreme Court twice struck down this move. Notwithstanding such rulings by the Supreme Court, the Government of Maharashtra carried out an amendment dated August 30, 2016, where it was stated that a magistrate can order an FIR against a public servant only when there is prior sanction obtained.

Social activist James John of AGNI was shocked to learn about the latest amendment. "It is unfortunate that judicial intervention is now at stake with such amendments, and the common man who would look forward to justice, will now be deprived of a fundamental right."

James added, "In today's era, where public servants should be made more accountable and transparent and held responsible for wrongdoings, they are being shielded by the government." Shailesh Gandhi, former Central Information Commissioner of India, and an independent RTI activist, said, "The amendment is an absurd move. The Supreme Court in numerous cases has stated that the police have to take cognizance of every complaint made to them. The lower courts directing police to register a complaint after going through the petition shows that the police have not followed Supreme Court directives and the courts are aware of this illegality."

Gandhi added, "The fact remains that the court should take no cognizance of private complaints. It is the police who need to act on every complaint. The state government by making such unwanted amendments is allowing the wrong practice to continue, which is absurd." Milind Mhaske, director, Praja Foundation, "Such a move only serves to trample the right to equality."

CrPC amendment
Under the amendment that came out in May 2018, a magistrate court cannot entertain any private complaints against public servants without the approval of the state government

Court orders
Shailesh Gandhi has managed to lay his hands on a circular issued by G D Pol, special inspector general of police (L&O) on behalf of the State DGP on February 17, 2012, (copy with his paper) and addressed to all commissioners of police, including railways and other subordinates. The High Court observed: It has come to our notice that in several cases though cognizable offence is disclosed, such complaints are not registered by the police station, resulting in grave injustice to complainants. The Director General of Police is therefore directed to inform all police stations concerned to strictly adhere to provisions of section 154 Crpc and ensure that complaints are registered promptly as soon as they are disclosed. It is brought to our notice that the directions given by this court are not strictly adhered to. Strict action will be taken if directions of this court are not followed. All Unit Commanders are directed to bring these instructions in writing to the notice of all police stations and subordinate officers working under them.

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