60% Gap In Murders Reported By NHRC Committee & State Police : Jethmalani To Calcutta High Court On Post-Poll Violence Cases

A 5 judge Bench of the Calcutta High Court comprising Acting Chief Justice Rajesh Bindal and Justices I.P Mukerji, Harish Tandon, Soumen Sen and Subrata Talukdar on Monday heard extensive arguments on the allegations of post poll violence in the State of West Bengal. The matter is slated to be heard next on August 3.

Arguments on behalf of the petitioners:

'Glaring discrepancies' between cases registered by the NHRC committee and the State police authorities

Senior Advocate Mahesh Jethmalani appearing on behalf of one of the petitioners argued that the evidence on record clearly show that there have been post poll violence in West Bengal and that victims have been repeatedly threatened to withdraw their complaints. Further strong objections were taken to the allegations of bias levelled against the NHRC committee members by the State.

"Motivation seems to be the chief argument instead of arguing on the findings. The State has chosen to accuse fact finding bodies of bias. The State has chosen to side with the complicit police authorities", the senior counsel opined.

Remarking on the 'glaring discrepancies' between the complaints registered by the NHRC committee and the State police authorities, the senior counsel submitted,

"There is a gap of almost 60 percent in how many murders the NHRC says took place and how many murders the police says has took place. Police has submitted that there have been only 29 murder cases whereas the NHRC has said that there have been 52 cases."

The senior counsel pointed out to the Court that the police authorities have contended that no rape had taken place. All offences merely relate to attempt to rape or sexual molestation cases according to the police. However, the NHRC Committee has registered 14 cases of rape alone, the counsel argued.

"Two rape cases have been filed in the Supreme court. However, no reply has been filed in the Supreme Court by the State yet in this regard", the senior counsel remarked. The counsel further added, "there is a glaring gap in the number of cases which in itself is a ground for constitution of an independent agency."

Referring to the reply filed by the State government, the senior counsel noted that the State government had entirely denied some of the findings of the NHRC committee. He added that apart from the NHRC Committee various other fact finding bodies had also submitted voluminous complaints regarding post poll violence. A total of 3384 complaints had been sent by such fact finding bodies, he submitted.

"1356 complaints have been dismissed by the State by terming them to be untrue without even registering FIRs. This is in gross violation of the Supreme Court decision in Lalita Kumari which mandate the registration of an FIR if the information discloses a cognisable offence", counsel Jethmalani submitted.

To this, the Bench observed that the victims in such instances always have a recourse in law by approaching the Superintendent of Police and lodge a complaint to this effect that FIRs are not being registered.

Further senior counsel Jethmalani submitted that in Para 19 of the State reply, it has been mentioned that consequent to May 5, 2021 when the new State government took over, the violence had abated and had almost become non-existent.

"However, there is a contradiction. The State says that there are instances of violence after May 5 but the State does not consider them to be in the nature of post poll violence", the senior counsel added.

To this the Bench observed that crimes occur every day in a State and accordingly directed the senior counsel to submit detailed statistics of cases that took place after May 5 so as to properly ascertain crimes that can be attributable to post poll violence.

Furthermore, senior counsel Pinky Anand appearing on behalf of one of the petitioners alleged that the State authorities have failed to consider complaints pertaining to murder and rape. Referring to the reply filed by the State, the senior counsel pointed out that the State had submitted that out of the 35 murder cases registered by the NHRC committee, 20 of them were unrelated to post poll violence. They apparently pertained to cases of accidental drowning, accidents etc. Further she argued that the State had refused to acknowledge the 11 cases of rape that the NHRC committee had registered.

To this, the Bench enquired from the senior counsel if she could present before the Court any instance wherein complaints alleging a very serious offence had been ignored by the State police authorities.

"Statistics of murder, rape, arsons etc during the last three years and May 2021 have to be compared to show that there has been post poll violence", the Bench added.

Advocate J.Sai Deepak appearing on behalf of one of the petitioners also submitted that from May 5, 2021 the State has seen numerous cases of violence wherein the perpetrators have an affiliation with the ruling party and the victims belong to the opposition parties. Accordingly, he added "There cannot be a better characterisation of the post poll nature of this violence". He also brought to the notice of the Court that several victims over the last few days have complained that they are being threatened by the police to withdraw their complaints.

Applicability of the provisions of the Protection of Human Rights Act, 1993

Further, opining on the applicability of the Protection of Human Rights Act, 1993 (1993 Act) in the instant case, the senior counsel referred to the Supreme Court decision in Paramjit Kaur v. State of Punjab wherein the Apex Court had held that if the NHRC committee has been appointed by the Court then it becomes a sui generis body and the provisions of the 1993 Act fail to apply anymore.

"The NHRC committee must be given a free hand to investigate and render justice. The provisions of the Act will no longer apply since in this case the committee has been appointed by the High Court", the senior counsel submitted.

Alleged contravention of powers by the NHRC committee

Responding to the contention of the State that the NHRC committee had issued recommendations in contravention of its allotted powers, Senior Advocate Jethmalani pointed out to the Court that the Court had itself instructed the committee to make such recommendations vide its earlier orders.

"The Court had also asked the committee to make a list of complicit police officers which the NHRC has done. Now the State government cannot say that the police officers have been unnecessarily prejudiced", he further added.

Further responding to the State government's plea of conducting a cross examination of the NHRC committee members, the senior counsel submitted that the Supreme Court in the case of Bandhua Mukti Morcha v. Union of India had clearly held that while enforcing fundamental rights under Article 32 of the Constitution, there is no such constitutional compulsion that every judicial proceeding has to be of an adversarial nature.

'It cannot be said that the NHRC report has no evidentiary value in the absence of cross examination", the senior counsel further added.

Allegations of bias against NHRC committee members

Senior counsel Jethmalani contended that allegations of bias made against the NHRC committee members are 'flimsy' and devoid of any merit. He also submitted that the NHRC report is completely unanimous and that the State has attacked the Committee only because they do not want to engage with the findings recorded. It was also pointed out to the Court that allegations of bias of were made against only 3 members of the Committee whereas the Committee consists of 7 members.

Transfer of investigation to an independent agency/constitution of SIT

Senior counsel Jethmalani also contended that prima facie there exists sufficient evidence to transfer investigation to an independent investigating agency in the interests of justice. The same prayer was advocated by senior counsel Pinky Anand. She also reiterated the need to constitute a Special Investigating Team (SIT) to monitor the allegations of post poll violence. She also referred to precedents such as the 1984 Riots wherein the Supreme Court had constitute such an SIT to investigate into the allegations. Reiterating similar concerns, Advocate Sai Deepak had urged the Court to constitute an independent SIT given the 'blanket denial' of the State in regards to the allegations.

The Court also heard Senior Advocate Kapil Sibal on behalf of the State Police (separate report on that may be read here).