Memorandum to Mumbai Police Commissioner on Saki Naka Police Station incident

May 5, 2015

Mr. Rakesh Maria
Commissioner of Police, Mumbai Police Commissioner Office,
D. N. Road
Mumbai– 400001
Phone No. : 022-22620826
Email: cp.mumbai@mahapolice.gov.in

Sub: Concerns regarding Saki Naka Police Station incident.

Dear Sir,

We write to you from the Commonwealth Human Rights Initiative(CHRI) and Police Reforms Watch (PRW) Mumbai. CHRI is a non-governmental organisation that has been working on better policing for over a decade. In 2013, together with partners and colleagues in Mumbai, CHRI assisted in creating Police Reforms Watch which is a coalition of concerned citizens who have been working to catalyse demand for better policing in Maharashtra.

We have been following the recent incident of alleged rape of a woman, and the illegal detention and extortion of the woman and her male friend at Saki Naka police station on 3-4 April. We wish to bring several issues of concern to your attention regarding mandatory procedures to be followed and clarification of some points of law. This is in no way an opinion on the commission, or not, of the offences alleged.

According to the credible news reports, the following facts have emerged to date:

1. A considerable amount of the cash alleged to have been extorted under severe duress has been recovered from Inspector Sunil Khatpe, Asst. Inspector Suresh Suryavanshi and Constable Yogesh Ponde, and these three, along with their civilian accomplices, are being interrogated in order to recover the remaining amount as well as personal valuables.
2. The aforementioned accused policemen have been arrested, are in police custody, and booked for rape, stalking, extortion, wrongful restraint and confinement, voluntarily causing hurt, common intention and abetment. Senior Inspector Prasanna More, in charge of the police station, and Deputy Commissioner of PolicePrashant Holkar have been transferred for not being sufficiently vigilant against such a shocking incident happening under their watch.
3. When presented in court, the accused policemen denied all the charges and instead contended that the victim has been booked earlier for immoral trafficking and illegal solicitation. These contentions were not believed by the Magistrate who remanded them to police custody.

. 4.The medical report from Cooper Hospital indicates prima facie that the victim was subjected to physical force and sexual assault, though rape is yet to be conclusively established. On 28 April, Dhananjay Kulkarni, DCP (Crime Branch) expressed his doubts regarding the rape allegations because the medical report had been secured by the victim herself, and he insited that the police would be going in for another examination in accordance with its "own procedures and protocols".

5.Preliminary reports, which have not been overtly denied by senior personnel in the police itself, strongly indicate that it was a case of the accused policemen, along with some civilian accomplices, running an extortion racket in which they grossly abused their lawful powers under the Immoral Traffic Prevention Act and the Bombay Police Act.

We readily acknowledge the alacrity with which you have acted upon being informed by the victim, and initiated the investigation and carried out arrests of the accused. Reflecting on the steps which have been taken so far, we wish to point out some remaining issues of concern:

1. It is not clear whether the First Information Report (FIR) was registered in strict accordance with the legal procedure laid down in Section 154 of the Code of Criminal Procedure, that is, recorded by a woman police officer, and with appropriate assistance to the victim so that she could narrate the facts without any apprehension and inhibitions.
2. It is not a case of mere wrongful restraint or extortion, because all alleged depredations have happened in police custody thus making it mandatory for all relevant legal provisions to be invoked.
3. Foremost among these is Section 176 (1) of the Code of Criminal Procedure which provides for a mandatory Magisterial Inquiry into any allegations of death or rape in custody, without any prejudice to whatever departmental and other proceedings conducted by the police itself. There has been no communication from the police or the government as to whether this has been complied with. It is nobody's case that when allegations of grave violations are levelled against the police themselves, an independent judicial inquiry remains indispensable to justice, both in letter and spirit.
4. The victim was detained for around nine hours, from midnight onward, in police custody, without any legal sanction or authority. Section 46(4) of Code of Criminal Procedure states that no woman shall be arrested after sunset and before sunrise. Although the law does allow a woman to be arrested at night in "exceptional circumstances", the woman police officer carrying out the arrest must make a written request and obtain prior permission of a judicial magistrate. The facts as disclosed clearly established that if the accused are allowed to plead "exceptional circumstances" as a defence, it would imply condonation of grave illegalities by men in uniform. Further, a proviso to Section 160 of the Code states that no woman witness can be summoned by the police to any place other than her residence. Thereby, there is no scenario in which it was permissible under law to question her at the police chowki.
5. With regard to the issues around the victim's medical examination, we are of the firm view that the procedural lapse on the part of the concerned doctor(s) who conducted the first medical examination of the victim at Cooper Hospital does not have any material bearing on the allegations of sexual assault. While the doctor's lapse is pertinent, we strongly urge that the second medical report should not be used to contest the victim's allegations. The legal obligation in Section 164A of the Code of Criminal Procedure to ensure that the victim's consent for any medical examination conducted is obtained must be upheld.
   6. In case the victim wants to come ahead and testify in the rape case, she must be provided with effective legal support at the State's expense. A Special Public Prosecutor must be appointed to prosecute the case against the accused. This is neither exceptional, nor without precedent, because AN Roy, a former Police Commissioner, had taken these very steps when Constable Sunil More of the Marine Drive Police Chowky was charged with rape in 2005. It needs to be emphasized that in case the victim declines to do so, in no circumstances should it be a ground to draw any adverse inference against her, because respecting a victim's agency is an essential component of the pursuit of justice.
   7. In case the accused policemen seek to claim the defence of Section 197 of the Code of Criminal Procedure on the grounds that they had acted in good faith upon receiving a tip-off about illegal prostitution being carried out at the stage of framing of charges, we point out that the Code of Criminal Procedure clearly rules out any requirement to obtain prior sanction for prosecution of a public servant in cases of rape or any form of sexual assault [Explanation added to Section 197 by the Criminal Law (Amendment) Act 2013]

While reposing faith in the police's intention and ability to carry out a fair probe and prosecution in this case, we are not unaware of the need for close scrutiny by a concerned public and civil society organisations, because that only fosters police accountability, in line with the Constitution and the laws of the land.

We shall be glad if this opens up a door for a constructive dialogue on this issue. Please find below the coordinates of the persons looking into this matter :

1. Dolphy D'Souza

Email : dolphydsouza@nagar.org.in ; Phone (M) : 9820226227 2. Saurav Datta

Email : saurav@humanrightsinitiative.org ; Phone (M) : 09999441546