This article is written by Karpagam from VIT Chennai

Case law: Susmita Saha Dutta vs Union of India & Ors


Election results released on May 2 2021, on the same day West Bengal saw a spate of violent incidents. The BJP and the ruling Trinamool Congress have blamed the deaths of several party workers. Many suffered sexual assault and other serious injuries. Young girls were also sexually abused, many buildings were damaged and many were forced to leave their homes and some were forced to move to another country. Applicant’s lawyer Vishnu Shankar alleged that supporters of the Trinamool Congress raped women and looted Hindu property. Many of their complaints were not recorded by the police despite the prima facie’ disclosure of the commission’s case. The surprising fact is that many authorities said that they had not received any complaints but when the opportunity was given to the complainants to lodge complaints with the NHRC / legal aid authority, the authorities were filled with complaints.

High Court’s views on post poll violence:

The Calcutta high Court set up a five-judge bench consisting of Chief Justice Rajesh Bindal, Justice I.P. Mukerji, Harish Tandon, Soumen Sen and Subrata Talkudar to take a good look at the violence in the polling stations in Bangal. The last  bench of 5 judges was built in Calcutta 16 years ago because usually five judges’ benches are built to resolve constitutional disputes. In a PIL action filed by attorney Anindya Sunder Das, the court ordered the government to notify the action taken against those accused of murder or of damaging property during the resulting violence. Justice Bindal said it was the responsibility of the central government to maintain order after the results of the polls were published. When Dutta’s attorney general said that the administration was under the Indian Electoral Commission and not under the government of the country but as soon as he took the oath of office on May 5, the Chief Minister took a number of steps to curb violence and action on those incidents. Advocate Pal also said that in the event of post-election violence, a constitutional matter is being discussed; he argued that until the results of the elections were published the states should be kept under the control of the Indian Electoral Commission. Then how could the state take action this time during this period! The Calcutta High Court has issued a statement questioning DCP Rashid Munir Khan, why he should not be prosecuted for failing to protect the Human Rights Commission’s investigation into post-poll violence in West Bengal. According to  Atif Rasheed, Deputy Chairman of the National Commission for Minorities and a member of the NHRC team, he suspected that people were chasing him during a visit to Jadavpur on June 29 to inquire about the violence, despite informing the regional Magistrate about their visit. The court ruled that prima facie he was responsible for the post-election violence and ordered West Bengal police to file a case in accordance with NHRC recommendations or how it is  reported. However, it is not public. On June 30 the committee submitted a brief report to the high court and asked for more time for the full documentation to reach all areas of violence. The court has asked the West Bengal government to provide appropriate treatment for those injured in the violence. It also ordered authorities to exhume the body of Bharatiya Janata Party employee Avijit Sarkar, who was allegedly killed by members of the Trinamool Congress during the dispute.

Supreme Court Views:

In May 2021, the PIL filed by the bench of judges Justice Vineet Saran and B R Gavai called on the SC to intervene to prevent post-election violence in the province. In its response the TMC government has said that the allegations in the High Court that the state machinery is part of the violence is false and misleading. The state also said that not all violence in this incident could be considered post-poll violence. By order of the high court, NHRC chairman Justice Arun Mishra had set up a committee to investigate the matter. On the same day, the high court refused to reconsider its order to request a civil rights inquiry. The western government of Bengal has asked the court to review and reverse the order. The SC also issued a notice to the violence investigation team.

Show cause notice to the DCP:

The court issued a notice for the Calcutta deputy police commissioner and asked why charges of contempt should not be initiated. “Notice must be given to Rashid Munir Khan, Deputy Commissioner of Police, South suburban Division, Kolkata to state the reason why his contemptible action against the breach of order issued by this court on June 18, 2021”, the bench ruled. An interim NHRC report stated that Atif Rasheed, a member of the committee, was barred from performing his duties when he and his party members were attacked by chiefs on June 29 in the Jadavpur area of ​​police in the South suburban Division.


Can the DCP be held liable?

The preamble to the Indian constitution makes it clear that no one is above the law. Under the Indian constitution police, it is a matter of the state and the governments of the country have a responsibility to provide efficient police services. According to sec 23 of The Indian Police Act it will be the duty of every police officer to carry out all orders and warrants given to him, to collect and communicate with intelligence affecting the public peace, to prevent the commission of public nuisance, to detect and bring offences to justice etc. these days people have little hope in the police. Under current law the only independent authority with the power to investigate the police is NHRC . It can only advise the government; it has no power to force the government to listen to them. The committee constituted by Justice J.S. Verma called for a change in police reform so that individuals could be held accountable. The police are protected under the sec 197 and 132 CrPC , that is, they need permission from the state or central government before any disciplinary action is charged against them. Substantive protections under section 197 only apply if convicted police officers can prove that an alleged illegal act was performing a legal duty while doing so. But sometimes the protection given in sec. 197  has been misused by the police for not filing a complaint or FIR, which has become a major obstacle in reporting the wrong doing. The DCP is therefore liable for not performing his duty under section 23 of the Indian Police Act and abuses the protection of section 197 under the CrPC.



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