Disturbing trends in Andhra Pradesh and Madhya Pradesh
Political Class should do away with the notion that Police forces are their private armies
There are disturbing trends in Andhra Pradesh and Madhya Pradesh in the wake of Political scams involving politicians. As the matters are subjudice without going into the merits of the cases as to the guilt or otherwise of politicians involved which the author feels is also unnecessary in the context of this article, it is humbly submitted that there needs to be some light thrown on the Relationship between Political Executive and Law Enforcement Agencies in the State because there is widespread ignorance accumulated in the political class that police in a Democratic set up are equivalent to the soldiers under monarchy to do whatever is dictated to them by the Political executive.
The relationship between Political executive and the Police is purely administrative in nature and police are in no way bound by the diktats and directions given by the political executive in their functioning as to filing the cases against the accused under IPC and other special laws. It is relevant to know for the police under what circumstances they seek the Political executive or Legislature to involve in the matters of law and order of the State. Political executive is there to pay the salaries of police personnel, provide them training, to decide on matters relating to their welfare, development of infrastructure of police stations so that they meet the needs of controlling the law order situation in the state, increasing the number of police per a given number of population etc. But the Political executive has in no way any jurisdiction to involve in the functioning of police on case to case basis conveying to them which people are to be brought to justice and which people are not to be brought depending on their political conveniences. It is entirely the discretion of the police which person may be proceeded against legally and brought to book and which person ought not to be. The Police are aligned with judiciary and in these matters they team up with magistrates they work under the orders and instructions of judiciary the political executive has no role to play in these matters. Police should never be under the impression that they ought to work under the instructions of the political executive and if there is any kind of mistaken impression in police force it is bounden duty of the governments to remove this impression by conducting training.
While referring to Arrest by Police without warrant the Code of Criminal Procedure lays down in S.41 that –
(1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person-
(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or
(b) who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or
(c) who has been proclaimed as an offender either under this Code or by order of the State Government; or
(d) in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing;
Or
(e) who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or
…..and so on.
It is a lengthy section no need to go further suffice to understand that the Code of criminal procedure is a National legislation when it speaks of the duties and rights of police to arrest a person it nowhere mentions that the police ought not to apprehend or arrest the criminals from other states. A person committing theft in Telangana goes and hides in Andhra Pradesh it is the duty of Andhra Pradesh Police if they have information about him, to arrest him and handover to the police in Telangana. A criminal in one state sought after by police of that state cannot be given refuge by the police of another state. There is horizontal cooperation between police force of one state and another state under Criminal Procedure Code, no vertical division along the borders of the States. It does not require extradition treaty for police force of one state to handover a criminal of another state to that state. In these matters entire police force in India comes under judiciary and works under the orders of magistrates the political executive nowhere comes into picture.
Now coming to the question under what situation the Political executive is empowered or authorized to interfere or intervene in the matters which entirely fall within the legal domain of police functioning – we must make a rational distinction by reading the circumstances of issues on case to case basis. For example, there was protest by students for a Separate Telangana state and thousands were arrested. It is not practically and administratively possible for the police force to bring these cases to logical conclusion because of the large number of people involved. In such cases the police may seek the advice of the Home Minister or Cabinet whether it is or not a matter creating a law and order problem to do away with the prosecution of these students. In such matters the Political executive can make a decision keeping in the effect of withdrawing cases against students. However it is to be noted that this is not a matter involving a single case. It is a matter involving huge number of people that is why the police consulted the government. But it is not for police to consult the government what shall we do in a particular case involving charges against some X, Y or Z. These are legal matters in which the State government is not competent to advice on case to case basis. In this matter the law and Cr.PC in particular is very clear that police should consult the magistrate or if necessary the Advocate General of the State. Constitution of India lays down -
Article 165 Advocate-General for the State
(1) The Governor of each State shall appoint a person who is qualified to be appointed a Judge of a High Court to be Advocate-General for the State.
(2) It shall be the duty of the Advocate-General to give advice to the Government of the State upon such legal matters, and to perform such other duties of a legal character, as may from time to time be referred or assigned to him by the Governor, and to discharge the functions conferred on him by or under this Constitution or any other law for the time being in force.
(3) The Advocate-General shall hold office during the pleasure of the Governor, and shall receive such remuneration as the Governor may determine.
Here, the phrase State government should not be interpreted as political executive alone. There is a mistaken impression in political class that State government means the Cabinet or the Political Executive of the State alone. State government is everyone who is in public service from peon to the Chief Minister who are paid salaries by the Public Exchequer for rendering public service. As the Political executive is not legally competent to advice on these matters, the police force may seek the advice of Advocate General in particular cases as to how they shall proceed…..through the Governor of the State. If we are to infer that State government means Political executive alone then police can only seek the advice of the Advocate General through Political executive only. To prove that this notion is wrong, let us contemplate a situation where a Chief Minister is accused in a crime. In such case, it would be impossible for the Police to approach the Advocate General through the Political executive. Therefore the Constitution rightly imposed that duty of assigning duties to Advocate General of the State to the Governor of the State. And therefore it goes consistent with the rationale that the State government does not mean Political executive alone, it also means and includes the non-Political executive which can directly approach the Advocate General through the Governor in matters involving the crimes committed by the political executive. It is knowing fully well that the political executive will not be impartial in criminal matters involving themselves, the Constitutional framers have made this provision in Constitution.
Now coming to the Madhya Pradesh, there is complete breakdown of law and order and Constitutional machinery in the State and it is a fit case for imposition of President’s rule in the State. Innocent people who want to be on the side of law and bring the criminals to justice are being threatened, hounded and hunted down like dogs and being killed with impunity and there is prima facie evidence that many people are being threatened which reportedly includes the people in Special Investigation Team monitoring the Vyapam Scam. The State Authority (Governor) who has to report the breakdown of law and order and Constitutional Machinery in the State himself is reportedly involved in the scam is in itself speaks volumes and shows the extent of breakdown of Constitutional machinery in the State and assuming that he is an interested party in Scam he is not going to send any adverse report to the Central Government about the situation in the State and therefore it is for Centre itself to take Suo Motu cognizance of the situation and impose President’s rule in the State. There is no doubt whatsoever in public that the length, breadth and depth of the scam is of unfathomable proportions and is a shame on the way we function as a politically organized society and conduct ourselves in our public life. There is a Mafia ruling the State doing everything possible under the Sun to coverup the issue without leaving a single stone unturned and it is for every Indian to gear up, speak up and raise his voice against the Mafia forces representing State in Madhya Pradesh.
