Duties Of Police Officers, Service Providers And Magistrate

The article is written by Shashank Sekhar Ojha ,a student of 1st year B.A.LL.B. at Banaras Hindu University, an intern under Legal Vidhiya.

At any given moment you have the power to say this is not how the story is going to end.

-CHRISTINE MASON MILLER

INTRODUCTION

Women have been subjected to violence domestic or otherwise throughout the pages of history whether they be Helen of Troy or Sita of Ramayana, whether they be Casandra of Troy, or Draupadi of Mahabharata. Women have been easy prey to the male ego and dominance. Much as the Indian civilization pays obeisance to the feminine divine, but the harsh reality remains that throughout the length and breadth of this country, women are assaulted tortured in their daily lives and in some cases burnt. The phenomenal growth of crime against women has attracted the attention of international community.

Article 15(2) of the Indian constitution provides for the making of special provision by the state, for women and child, for enforcing the right to equality.

There was a dire need for a substantive step in creating a legal structure to fill the lacuna and accommodate the day to day cases of domestic violence in the lives of women. This substantive step was “The Protection Of Women from Domestic Violence Act, 2005”. Seeing the demand of society it extended its authority to live in relationship. It has multiple roles ranging from legal provisions to emergency relief for victims.

LEGISLATIVE HISTORY:-

Since 80s women groups have been crusading to bring effective legislation to respond to domestic violence. In 2001, the Lawyer’s Collective laid the “Domestic Violence Against Women (Protection) Bill”. It takes into consideration several prevalent forms of violence against women within family and proposes a mechanism for women to approach the court for a protection order to prevent further violence and to ensure that they do not have to leave their home.

Extensive discussion among representatives of several NGOs such as the Lawyers’ Collective, the NHRC, the National Commission for Women and the Ministries of Home Affairs, Health and Family Welfare, Social Justice and Empowerment, Elementary Education, Justice and Legal Affairs and legislative departments led to the advent of bill.

It was bought into force by the Indian government on 26/10/ 2006.The act was passed by the parliament in august, 2005 and assented by president on 13/09/2005.

DUTIES OF POLICE OFFICERS, SERVICE PROVIDERS AND MAGISTRATE

The Act contains 37 sections in 5 chapters. Chapter III deals with “POWERS AND DUTIES OF PROTECTION OFFICERS, SERVICE PROVIDERS, ETC”. Section 5 deals with Duties of police officers, service providers and Magistrate. Its provisions are:

1. Scope: – This section lays down the duties of a police officer, Protection Officer, service provider and the Magistrate to inform the aggrieved person of her right to make an application for one or more reliefs under the Act, the availability of services of service providers and Protection Officers, her right to avail free legal services under the Legal Services Authorities Act, 1987 and her right to file a complaint under section 498-A of the Indian Penal Code, 1860 wherever relevant. It is also envisaged that this section shall not relieve any police officer from his duty to proceed in accordance with law on receipt of information as to commission of a cognizable offence
2. Police can register the offence if the information discloses cognizable offence: – Even though it is the duty of the police to assist the aggrieved person with a view to avail the remedy provided by the Act, police can also register the offence and proceed with the investigation according to the procedure prescribed by law where the information received by them discloses the commission of cognizable offence. In such case the scheme provided by Section 154 of the Code of Criminal Procedure, 1973 is mandatory in nature. If the complaint discloses cognizable offence, then there is no discretion left with the concerned police station officer, but to register Police, the offence. In Archana v. Commissioner of Police^[1] of the marriage of petitioner was solemnized in 2000 and her husband was patient of HIV positive. The husband was fully aware about the deadly ailment he was suffering from, prior to getting married to the petitioner. The husband of petitioner deliberately and purposefully did not disclose these facts to the petitioner and performed the marriage with her. The complaint was filed under provisions of the Protection of Women from Domestic Violence Act, 2005, Section 498-A of the Indian Penal Code, 1860 and similarly under section 3 and 4 of the Dowry Prohibition Act, 1961. However, no crime was registered by the police under section 420 as well as section 308 of the Indian Penal Code, 1860, though the cognizable offence was made out. The Bombay High issued directions to police to apply mind to the allegations made by the complainant and if those allegations disclose any cognizable offence against the husband, appropriate steps are to be taken according to law by registering crime in the light of the observations made by Apex Court in Ramesh Kumari’s case^[2].

OBJECT OF SECTION 498A IPC

Section 498A was introduced into Chapter XXA of the Indian Penal Code. 1860 by the Criminal Law (Second Amendment) Act, 1983, w.e.f. 25.12.1983. The Statement of Objects and Reasons of the Bill introducing the said section reads: The increasing number of dowry deaths is a matter of serious concern. The plight of the situation  has been commented upon by the Joint Committee of the Houses to examine the working and usability of the Dowry Prohibition Act, 1961. Cases of cruelty by the husband and relatives of the husband which culminate in suicide by, or murder of, the helpless woman concerned, constitute only a small fraction of the cases involving such cruelty. It is, therefore proposed to amend the Indian Penal Code, the Code of Criminal Procedure and the Indian Evidence Act to increase the ambit so as to include with cases of dowry deaths , the cases of cruelty to married women by their in-laws.

Woman is eligible to apply for free legal aid by virtue of S.12(c), The Legal Services Authorities Act, 1987

POWERS AND FUNCTIONS OF SERVICE PROVIDERS

S.10, The Protection Of Women from Domestic Violence Act, 2005, lays down the functions and duties of service providers. Service providers are defined under the Act as any voluntary association registered under the Societies Registrations Act 1860 or a company that is registered under the Companies Act, 1956 which aims to protect the rights of the women lawfully by providing legal aid, medical, financial or other assistance. The powers and duties of service providers are mentioned below.

1. A service provider has the authority to record any incident of domestic violence and forward it to the Magistrate or Protection Officer having jurisdiction where the incident of domestic violence took place.
2. The service provider must get the aggrieved person medically examined and forward such a report to the Protection Officer, Magistrate and the police station within the local limits where the domestic violence took place.
3. It is also the responsibility of the service providers to provide a shelter home to the victim if they require one and forward the report of lodging of the victim to the police station having jurisdiction.

SUGGESTION

ROLE OF POLICE: CRITICAL REVIEW

Domestic Violence differs from the other traditional crimes. As a result of this the police do not consider it as a crime unless it takes bizarre turn. Generally the complaints are registered only after an offence has been committed but in a situation of domestic violence a woman needs protection even before the crime is committed, as she apprehends danger to her life from the assaulter on whom she is dependent and the threat is constant. Sometimes the protectors of the society or the guardians often become the perpetrators of the crime. The reason behind these may be seen from the two points of view, first the ordinary policeman is ill equipped to deal with the difficult and sensitive cases of crime; and secondly the social background from which the policemen are drawn is itself found to be wanting in its behavioral attitude towards female sex.

When a matter of domestic violence comes into notice of police , they are reluctant to intervene and  state it as a family matter   . A few of these deficiencies, as pointed out by the Supreme Court in Bhagawant Singh’s case [^3],” support the allegation that the incidence of unnatural deaths is much higher than is indicated by the police records. Even the police diaries relating to the registered cases are not maintained property.

It has been found that very often in dowry death cases, police investigation tend to be sloppy and full of loopholes, whereas the Ministry of Home Affairs, Govt. of India has issued a circular containing the detailed instructions regarding the investigation into dowry death cases. According to this circular every case should be investigated by the officers not below the rank of Deputy Superintendent of Police.

As the police is state subject, it has a professional responsibility to take care of all the people. This responsibility demands the highest standards of conduct, particularly those of honesty, impartiality and integrity. The ideal purpose of Police in a Community can best be described in the following word which spell out the duties of law enforcement officers as laid down in the International Code of Enforcement Ethics^[4].If a police officer has any reason to believe that a person is a victim of domestic violence, the officer shall be under obligation to use all reasonable means to prevent further domestic violence and to ensure the victim’s safety. Thus, police are empowered to take action against the wrongdoers.

In this regard the decision in Thurman’s case of USA elaborates the obligations of the police. This decision has gone a long way to making the police responsible for the claims of compensation for causing negligence and violation of equal protection of law and right, under the Constitution. The decision makes the police more accountable for the negligence in cases of domestic violence. The facts of the case in brief are Mr. Thurman^[5] and her relatives sought help from the police against her entrained husband who had been threatening to kill her and her son. The USA police in conformity with their usual indifference and apathy in such family affairs, resorted to various delaying tactics for many days till her husband attacked her causing multiple grievous injuries leading to paralysis below the neck and permanent disfiguration of the body. A claim for compensation from the police for their negligence and violation of equal protection of law right under the constitution was upheld by the court, which awarded a sum of 2.3 million dollars to the victim. Thus, this case leads to the protection of human rights of women in real sense.

In India the position is somewhat different, as it is only when the violence leads to the extreme consequence of death of a woman, then the criminal law machinery comes into motion to deal with the possible offences of murder, dowry death etc. There needs to be more sensitization of police in domestic violence crimes and development in these aspects

Lodging an FIR: often a frustrating experience. One of the most serious complaints against the police is that they are reluctant to accept and record FIRs. In domestic violence cases, women are told by police it must be their fault for which they are beaten. Women are accused of provoking and angering their husbands or in-laws. Women are strongly discouraged to lodge complaints of domestic violence in the name of protecting family houour. Difficult as it is for women to have their complaints accepted by the police, it is even more so to get a sympathetic hearing and a proper response from the police personnel attending to her.^[6]

• Problem in getting copy of FIR
• Counselling by the Police
• Investigation in Domestic Violence Cases by the Police

ROLE OF JUDGES IN DOMESTIC VIOLENCE CASES

Judiciary has a very important role in enforcement of laws. Even if the police and the public prosecutor perform their allotted roles reasonably well, the final outcome of a case is by no means certain, as it depends substantially on the stand taken by the trying judge. The stand taken by the judiciary is liable to be coloured by their own perceptions of gender issues including the malady of domestic violence. Certain aspect of judicial attitude was brought out quite vividly as a report compiled by Sakshi, an NGO of Delhi in 1996. The Sakshi report refers to a survey of attitudes of judges in India with respect to domestic violence. It notes that three fourth (74 percent) of the judges surveyed felt preservation of family should be a primary concern for women even if there violence in the marriage, an overwhelming number (90 percent) felt that they would not opt for legal measures in the event of domestic violence involving their daughter or other family members and half of them said that women who stay with men who abuse them were partly to blame for the situation. In this context a certain observation contained in a judgment of the Supreme Court seems particularly apt: “We feel convinced that a socially conscious judge is better statutory armor against gender outrage than long clauses or complex sections with the entire protection writ into it.”^[7] The judiciary is playing a dynamic role in expounding the law and clarifying the legal norms so that culprits do not escape punishment on account of technicalities and inadequacies of law. In reality, the process of trial and punishment of the accused in domestic violence cases is fraught with numerous hurdles. The court insist too much on technical rules of evidence—the evidence without reasonable doubt and this insistence may serve to provide an escape route for the offender.^[8] The general attitude of the judiciary (at all levels) is to adhere to an old dictum that hundred guilty men may escape, but not one innocent punished.^[9] Most of the judges have not given much attention to Mr. Justice Subyasachi Mukheijee’s observation (in Gurbachan Singh v. Satpal Singh, AIR 1990 SC 209), that reasonableness of the doubt regarding evidence should commensurate with the nature of the offence to be investigated and that obsession with rule of “benefit of doubt” should not destroy social defense. He also added that justice cannot be made sterile on the plea that it is better to let hundreds of guilty escapes than punish an innocent. Letting the guilty escape is not doing justice according to law. Judiciary’s tendency to stick strictly to the technical rules of evidence proves a veritable boon for dowry death devils, because the courts of justice often remain prisoners to technicalities. Happily, enough, there is now a welcome change in the attitude of the judiciary in respect of dowry death cases. The apex level judiciary in various cases [^10] has shown tendency towards deterrent punishment in cases of dowry deaths. The Supreme Court has also held that in cases of bride burning, the death penalty is justified and these murders belong to rarest of rare cases.^[11]

                CONCLUSION

The Protection of women From Domestic Violence Act has been passed by the Parliament in response to a worldwide pressure for such legislation and also the outcome of the continuous efforts of Women organizations working for women. It is the general hope that the legislations would serve a real deterrent to the occurrence of domestic violence in the country from ancient period and it would assure the families peaceful coexistence among their members. Indeed it was a welcome step.

To make real effective implementation of the Act the and to give the support to the victims of domestic violence the authorities created under the Act have a vital role to play if they are not well aware of the legal provisions, similarly the awareness of the law, the relief and remedies available to the victim under the Act and the formalities of procedure is also necessary to be analyzed in order to find out the utility of the Act. While assessing the Legislative framework it is observed that the procedural technicalities are not given much importance so also the analysis of few judgments show that the judiciary is also giving purposive jurisprudence to vindicate the rights of women. But again the access of justice even though made easy for victim still the social mindset and the extreme patriarchal structure of our society from time immemorial throw the real challenges for the working of the PWDVA 2005.

REFERENCES

• Lahiri ,Legal control of domestic violence in West Bengal a critical study with special    reference to implementation of the protection of women from domestic violence act 2005,Department Of  Law, University Of Calcutta (2008)
• Saini, Vidhyadhar Kumar ,Domestic violence causes consequences legislative and judicial trends specific reference to Domestic Violence Act 2005 , Department of Law, Maharaja Ganga Singh University, (2018)
• Gouhar Sultana,  Protection of women from domestic violence act 2005 its implementation in the Aligarh district ,Department of Political Science ,Aligarh Muslim University, (2015)
• K Sangeetha, Protection of women’s human rights with special reference to domestic violence act ,Tamil Nadu Dr. Ambedkar Law University ,(2016)
• Thangamani R, The Protection Of Women From Domestic Violence Act 2005: A Study Of Its Impact With Special Reference To Tamilnadu, Shodhganga,( 2019)
• THE LEGAL SERVICES AUTHORITIES ACT, 1987
• THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005
• THE INDIAN PENAL CODE,1860

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^[1] 2007 (2) Mh.L.J. (Cri.) 757

^[2] Ramesh Kumari’s v. State (NCT of Delhi) and others, 2006 (2) SCALE 457, wherein the Apex Court held that, if any information disclosing a cognizable offence is laid before an officer in charge of a police station satisfying the requirement of section 154 (1) of the Code of Criminal Procedure, 1973, the said police officer has no other option except to enter the substance thereof in the prescribed form, that is to say, to register a case on the basis of such information

^[3] Bhagwant Singh v. Commissioner Of Police,(1983) 3, SCC  344

^[4]  Within Four Walls-A Profile of Domestic Violence’ Page 17-18 (Multiple Action ResearchGroup (MARG) New Delhi).

^[5]Trecy Thurman’s Vs. the City of Tarrington, Connecticut 595 f supp 1521 (Dist. Conn 1984) in Ahmed Siddiqui, Criminology Problems and ‘Perspectives’ Ch XVI P. 500 (Eastern Book Company, Lucknow, 4^th edition ,1997) 

^[6] Mukherjee, Dr. Mukul.; Domestic Violence—The Crime Behind closed Doors And The Role of Law Enforcement Agencies, Human Rights series-6, p – 27 ( Institute of Social Sciences, New Delhi, 2005)

^[7] Agnes, Flavia “Protecting Women Against Domestic Violence : Review of a Decade of legislation”, p – 20 (1980-89), in Economic and Political Weekly, (25/4/1992).

^[8] Mukheijee, Dr. Mukul. op. cit. p – 40

^[9] Srivastava, S.P. op. cit. p – 56

^[10] Virban Singh and Another v. State of UP AIR 1983 SC 1002.

      Subhash Chand v. S.M. Agrawal, 1984 Cr. LJ. 481.

      Bachan Singh v. State ofPunjab AIR 1980 SC 897

^[11]Srivastava, S.P. Op. cit p – 56