A word of advice to the Delhi police

In the wrestlers’ case, any delay in investigation will not only invite adverse consequences, as far as the law is concerned, but will also affect confidence in the standing of the police

June 06, 2023 12:16 am | Updated 10:00 am IST

Wrestler Sangeeta Phogat being detained by the police, in Delhi

Wrestler Sangeeta Phogat being detained by the police, in Delhi | Photo Credit: AFP

The protest by India’s medal winning wrestlers has been in the news for long. Two cases of sexual harassment were reportedly registered on April 28, 2023 by the Delhi police against the president of the Wrestling Federation of India (WFI), after the intervention of the Supreme Court of India, based on a petition filed by a few wrestlers. The cases were under the Protection of Children from Sexual Offences (POCSO) Act and the relevant sections of the Indian Penal Code (IPC) concerning the outraging of the modesty of a woman and sexual harassment, while the other was with respect to outraging the modesty of a woman under the IPC. While the investigation of these two cases is under way by the Delhi police, the complainant wrestlers are still consistent in their demand— the arrest of the accused. They too offered to undergo a narco-analysis test when the accused offered to undergo any such test to prove his innocence.

Some of the allegations date back to previous years, the implication being that there was a delay in lodging the complaint with the police. At the stage of the registration of the first information report (FIR), if a complaint has the ingredients of a cognisable offence, the mandate of the Supreme Court (given in Lalita Kumari vs Govt. of Uttar Pradesh and others (2014)) could not have been violated. The veracity of allegations (of a cognisable offence) cannot be inquired into before registering an FIR. In case the delay in reporting the matter is over three months, the reasons for the delay are to be explained satisfactorily. It is also a recognised principle of law that a mere delay in an FIR is no ground to discard the prosecution story, if the truthfulness and plausibility of the explanation for the delay are established to the satisfaction of the court. Otherwise, it may need corroboration with additional and credible evidence. Therefore, the insistence of the Delhi police on holding a preliminary inquiry and a delay in registering cases does not seem to be justified.

As far as conducting a narco-analysis test or any such similar scientific test is concerned, such tests are conducted either on a suspect or on a witness (but not on a victim) under conditions laid down in Selvi vs State of Karnataka (2010). The truthfulness of the allegations cannot be established with the aid of such tests. The credibility of the statement of the victim is tested through a thorough cross-examination which alone could be sufficient even to prove her case. Similarly, the statement recorded by a judicial magistrate under Section 164 of the Criminal Procedure Code (Cr.PC) will be useful only if the judicial magistrate is called by the trial court for examination. However, such tests administered on the accused may help in a further investigation if some information or material is discovered after such tests.

Arrest is conditional

On the issue of arrest, one needs to look at the substantive laws and sections applied. According to information available in the public domain, allegations that pertain to sexual assault at the workplace or otherwise which may attract Section 8 or/and Section 10 (punishment for aggravated sexual assault as the president of the WFI was in the position of authority) or/and Section 12 (sexual harassment) of the POCSO Act in the case of a minor victim and Section 354 (outraging modesty of a woman) or/and 354A (sexual harassment) of the IPC in case of other victims. In none of these sections, the punishment is more than seven years of imprisonment.

Therefore, according to Section 41 of the Code of Criminal Procedure, arrest is not mandatory unless there is material evidence to show (as mandated by the Supreme Court in Arnesh Kumar vs State of Bihar & Anr. (2014) the possibility of tampering of evidence or making any threat, or to prevent committing of any further offence or for proper investigation of the offence. Otherwise, issuing notice under Section 41A of the Cr.PC for appearance before the police would be sufficient. Since the accused is an influential person, these apprehensions mentioned above may not be ruled out; however, there need to be reasons and material to justify the arrest.

On the other hand, if there are multiple offences committed at multiple locations over a period of time, the police also need reasonable time to look for and collect evidence to build their case. Ultimately, it is the evidence which will be relevant to convict the culprit(s), and not the arrest only.

Complete the investigation quickly

Therefore, looking at the sensitivity of the cases, the best option available with the Delhi police is to complete the investigation quickly and have the final report in court. For offences punishable with imprisonment of less than 10 years, as in the present cases, investigation needs to be completed in 60 days after arrest to prevent the detainee from being released on bail. Since no arrest has been effected so far, this provision is not attracted in a strict sense in the given cases. However, it would be prudent to complete the investigations expeditiously in keeping with the provisions of the Cr.PC. For the minor victim, there is also a presumption in favour of prosecution under the POCSO Act and it will be for the accused to prove that he did not commit the offence. If the police do not find sufficient evidence to charge sheet the accused, it has to put up the final report in court. When the victims are insistent in their allegations and are protesting for justice, the allegations cannot be said to be false. However, the court may still frame charges and proceed with the trial. The ultimate decision to proceed with the trial or not to, and frame charges would be taken by the judicial magistrate after deliberations. Any delay in investigation will not only invite adverse consequences in the law but also shake public confidence in the Delhi police, which is the principal investigating unit in the capital of the country.

On the other hand, the victims, if not satisfied with the progress of the cases, may approach the Delhi High Court to issue directions to the Delhi police to put up the status report and complete the investigation in a given time frame.

R.K. Vij is a former Director General of Police of Chhattisgarh. The views expressed are personal

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