Independent body likely to lose power to probe ‘attempt to rape’ cases against Haryana cops

Amendment was debated in Haryana assembly last August and referred to select committee. Rape has evidence but anyone can level allegation of ‘attempt to rape’, CM Khattar had said.

Haryana CM Manohar Lal Khattar addressing Vidhan Sabha | ANI file photo

Chandigarh: A proposed amendment to the Haryana Police Act, 2007, is likely to deprive the Haryana State Police Complaint Authority of its power to probe complaints of attempted rape in police custody. But the authority will retain the power to take suo motu cognizance of an allegation against a police officer, according to the amendment which has been duly approved by the select committee of the Haryana Legislative Assembly.

Tabled during the monsoon session of the Vidhan Sabha last year, the Haryana Police (Amendment) Bill, 2022, proposed to take away suo motu powers granted to the Haryana State Police Complaint Authority. This proposal was, however, dismissed by the select committee in a report — a copy of which was accessed by ThePrint — presented to the state legislature on 22 February.

While the select committee in its report recommended that the authority be divested of its power to probe a complaint of attempted rape in police custody, Varun Chaudhary, the Congress MLA from Mullana and a member of the committee, wrote a dissenting note opposing its recommendation in this regard.

The select committee has submitted its report to the assembly but it is up to the government to go ahead with its initial amendment, or the one recommended by the select committee, or not to press for the amendment at all, Chaudhary told ThePrint Tuesday.

A senior police officer posted in Haryana said on condition of anonymity that since the force deals with a lot of cases where two parties are pitted against each other, people do not hesitate in lodging frivolous complaints against officers investigating their case. “Redressing grievances of people against cops is important but at the same time, the government must keep in mind that false and frivolous complaints against cops will adversely affect investigations,” he added.

He opined that giving suo motu powers to the State Police Complaint Authority is not justified because cognisance is usually taken on the basis of a news report or video which may later prove to be untrue or doctored.

The Haryana State Police Complaint Authority is an independent entity set up under the Haryana Police Act 2007 to hear the grievances of citizens against police officers. As an oversight body, it enquires into allegations of serious misconduct against police personnel either suo motu (taking cognizance of the act on its own) or on the basis of a complaint received or a reference by the government or the state or national human rights commission.

After a detailed enquiry which may include hearing the complainant and the accused officer, and examination of witnesses, the authority can recommend to the government action against the errant officer if it encounters valid grounds for the same.

P.K. Sandhir, a prominent criminal lawyer practising in the Punjab and Haryana High Court, believes the move to omit ‘attempt to rape’ from the scope of the authority’s powers is based on a flawed premise.

“For the offence of rape under section 376 of the IPC, mere penetration is enough. The offence will be complete even if there is no sexual intercourse. An attempt, which is covered under Section 511 of the IPC, always goes with the main offence. If a cop tries to rape a woman in a police station and the offence doesn’t reach penetration stage because of stiff resistance from the victim or due to the sudden arrival of another person, the gravity of the act of the cop is not less serious,” he said.

Sandhir added that even otherwise, in cases of rape where the complaint approaches authorities a few days after the date of the offence, the court relies on the statement of the prosecutrix owing to a lack of forensic evidence. “How then is the statement of the complainant unreliable in an attempt to rape (case)?” he wondered.

Bill debated in Haryana assembly

Vidhan Sabha Speaker Gian Chand Gupta had proposed that a discussion on the Haryana Police (Amendment) Bill, 2022, be held immediately after home minister Anil Vij introduced it in the state assembly during the monsoon session on 10 August last year. 

Initiating the debate, Congress MLA Varun Chaudhary said passing the Bill in a hurry on the day of its introduction would dilute the powers of the Haryana State Police Complaint Authority. People already hesitate to lodge a complaint against uniformed officers owing to fear of the police, he added.

However, Vij was of the view that the authority must not have the power to initiate a probe unless approached by a complainant. Chaudhary responded to Vij by arguing that even the Supreme Court and high courts take suo motu cognizance in cases where they feel an inquiry is warranted.

At this time, CM Manohar Lal Khattar intervened and emphasised the need for limiting the power granted to any one authority. Citing how unauthenticated videos or unfactual reports go viral, he said it would not be correct for the authority to take cognizance of such videos or reports.

“The Act provides the offence of rape or its attempt as a ground for a complaint before the authority. But while rape has evidence, there is no evidence of an attempt. A complaint of an attempt to rape can be lodged against anyone, and the State Police Complaint Authority will keep on dragging such cases for years, which is not fair,” said Khattar.

Jagbir Singh Malik, the Congress MLA from Gohana, asked the speaker why the government wanted to save policemen accused of rape. Khattar rejected the argument and said the amendment was merely aimed at ensuring that unchecked power is not conferred on any one institution.

Malik then suggested that the Bill be referred to the select committee, contending that citizens must have the right to complain against any such type of excesses committed by police officers. To this, Chaudhary added that the authority’s role is to probe and not punish those found guilty but the government is trying to put obstacles in its way of functioning.

Intervening at this time, Deputy CM Dushyant Chautala cited certain “objectionable” issues that emerged during the discussion to request the speaker to send the Bill to the select committee.

The Bill was then sent to a select committee for consideration by unanimous consent.

Later, the speaker constituted a select committee, nominating deputy speaker Ranbir Gangwa as its chairman and Home minister Anil Vij and BJP MLAs Harvinder Kalyan, Mahipal Dhanda, Subhash Sudha and Satya Prakash as its members. The committee also included Congress MLAs Geeta Bhukkal, Aftab Ahmed and Varun Chaudhary, besides Jannayak Janata Party (JJP) MLA Ishwar Singh and Independent MLA Sombir Sangwan.

‘Defeats purpose of setting up authority’

In his dissenting note, which was part of the select committee’s report, Chaudhary underlined that the Haryana State Police Complaint Authority was constituted to ensure police accountability in the wake of the SC’s judgment in the Prakash Singh vs Union of India (2006) case. “The Haryana Police (Amendment) Bill, 2022, is limiting the purview of the Police Complaint Authority, defeating the very purpose of setting it up,” the note read. 

It further added that the proposed amendment narrows the definition of serious misconduct by a police officer, allowing inquiries only if rape or grievous hurt is caused in police custody and not otherwise.

“The District Police Complaint Authority has not been set up as per section 68 of the Haryana Police Act, 2007, and by an order dated 24th September 2021 the inquiries which were to be conducted by the District Police Complaint Authority as per the Haryana Police Act, 2007, were transferred to State Police Complaint Authority. This order is void ab initio, as an amendment or ordinance is the only means to provide for any change, provided in the Act. Although this order mentioned above has over-burdened the State Police Complaint Authority as a majority of the complaints are against the Inspectors & ranks below Inspectors will affect the timeline of six months proposed in the Bill to decide the complaints under section 65(4),” he argued.

The note concluded thus, “To ensure police accountability in the interest of the public, The Haryana Police (Amendment) Bill, 2022, may therefore be taken back.”

(Edited by Amrtansh Arora)