In one of the observations on the Bengal post-poll violence case, Justice IP Mukherjee said that he agreed with the order proposed by the bench based on various factors.
NHRC Was Not Tribunal Or Commission
The Committee constituted by the National Human Rights Commission is not to be treated as a Tribunal or a Commission. It is to be equated with a team of Special Officers.
“The said Committee constituted by the National Human Rights Commission had only power under our order to report on facts as gathered by them on investigation. They had no jurisdiction to make any recommendation or to express any opinion. We did not vest them with that power. Before proceeding to make any recommendation or express any opinion, they had to observe the procedure prescribed by the Protection of Human Rights Act, 1993,” he said.
“Before making any recommendation, the Commission had an obligation of complying with certain procedures mentioned in that Act, inter alia with regard to giving notice to and hearing a person against whom a recommendation is proposed to be made. Even if we assume that the Committee was making a recommendation under the said Act, the view expressed by it was without compliance with that procedure. Therefore the part of the report expressing opinion, making recommendations etc. is non-est in the eye of law,” he observed, clearly pointing out that the NHRC recommendation was not their assignment.
Interestingly, this point was raised by State Government in their affidavit.
In this case, it is alleged that the police did not receive complaints of crimes related to post-poll violence or take any action on complaints.
“I observe that under Section 154(3)of the Code of Criminal Procedure, 1973 on the refusal on the part of the officer-in-charge of a police station to record the FIR a person aggrieved had the right of sending the substance of the information to the Superintendent of police who would register it and investigate the case himself or send it to any police officer for investigation. That any such attempt was made by any of the complainants under Section 154(3) is not disclosed. Neither any written complaint to any other authority is on record,” he said.
Further, he added, “Allegations have been made by the petitioners that the police officials have forced the victims to withdraw their complaints. If the police officials force a complainant to withdraw a complaint, that is also an offence. Communication by the victim to any authority complaining of such conduct has not been brought on record.”
“Ms. Priyanka Tibrewal, a learned Advocate, states that the victims are uneducated and do not have the required resources. While hearing this matter, the court had given leave to her to make complaints on behalf of such victims but still, no complaint that the police was forcing people to withdraw them had been registered,” he said.
Chronology
“The State says that the number of cases where no dates of incidents have been mentioned are 864 which is 43.65% of the total cases. 892 incidents have occurred between May 2, 2021 and May 5, 2021 which is 45.07% of the total cases. Incidents after May 5, 2021 are 188 which is 9.4% of the total cases,” he said, adding that incidents of crime decreased after May 5.
Observation On EC
“The submission of the Election Commission is absolutely right that the conduct of elections was with the Election Commission but the administration was with the government. The government says that the Election Commission was in charge upto May 5, 2021. The Election Commission, in my opinion, is theoretically correct. But, it is also true that the Election Commission had directed the administration to transfer officials with administrative duties and post them according to its direction at the time when it was in charge of the election. If offences had occurred as a consequence of the polls, it was also the duty of the Election Commission at least to direct or advise the administration to register the complaints which it did not,” he said.
“In this type of cases, it does not matter, in my opinion, which agency makes the investigation, the state or the CBI. If the offence is established, the wrong doers have to be brought to justice. Only then will the entire system be seen as fair, just and transparent by the ordinary people,” he said.
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