“Maral leiba faraga jail da thambiyu”
“Maral leiba mee hwjik fao fadriba keigino”
“Maral leiba mee bail da thadokpa yaroi”
These are some of the common headlines we are repeatedly hearing or seeing now-a-days. It does tend to make one curious as to the functioning of the criminal justice administration – from the whole mechanism to its efficacy, ‘rule of law’, or rather its hurried disappearance from the public sphere of Manipur. Such sensational headlines do tend to make one wonder as to how exactly a criminal is brought to the much heralded ‘justice’ or whether there exists any such mechanism by which the guilt or innocence is proved. As far as theory goes, everyone is innocent until proved guilty, and the guilt has to be proved beyond reasonable doubt. But as far as such headlines goes, the guilt appears to have already been pre-determined. The inference thus derived is thus – from crime direct to jails. The role of the police is thus erroneously presumed to be limited to apprehending the alleged perpetrators of crime and ‘depositing’ them in jails. That is justice, as far as the headlines goes. There is no room left for investigation, no room left for judicial adjudication, and certainly no room left for the accused to defend the charges labelled against him.
Now, as far as criminal justice administration is concerned, the police are the first responders to a crime. They are duty bound to investigate the crime, and arresting the suspects are of course a necessary corollary of the investigation process. The suspects or the alleged perpetrators are arrested by police during investigation simply to prevent the commission of further crimes and to prevent them from absconding. At this point of time, as the guilt has not been determined by a court of law, such arrests and subsequent remand into police and judicial custody are not, cannot and should not be termed as punishment. At its best, it can be termed as a species of preventive detention. This common misconception requires correction, as an immediate measure.
Manipur is indeed a strange place, and nestled in the abode of the Gods, was always a special child. Probably, that’s why we have so many special laws in force in our small state. In this context of criminal justice administration, some of the special provisions in force in Manipur deserve reiteration, simply to set the discourse rolling, for the benefit of the generations to come.
The Code of Criminal Procedure provides the manner an investigation is to be conducted, from the manner an FIR is registered, to arrests as to how, when and in which cases they are to be made, the period under which an investigation is to be completed, and for how long an alleged perpetrator/ suspect/ accused can be detained in jails pending investigation and trial.
Section 167 of the Criminal Procedure Code is the relevant provision which spells out the period during which an investigation is to be completed. Generally, it is 60 days for crimes punishable with less than 10 years and below; and 90 days for crimes punishable with death, imprisonment for life and imprisonment for more than 10 years. However, for Manipur, the ceiling of 60 days and 90 days has been extended to 120 days and 180 days respectively.
This distinction also assumes importance in the light of the fact that these are the period for which a person can be detained in police/ judicial custody subject to the provisions of bail, pending the investigation. Manipur was always a special child, even before the onset of the various stringent special laws in force now.
Now, let us go back in time for a few minutes; more specifically to the 1980s, where these changes have been brought about. It was 1982. The Code of Criminal Procedure (Manipur Amendment) Bill, 1982 was introduced, and was subsequently passed by the Manipur Assembly on 03.03.1982. And thus, it became The Code of Criminal Procedure (Manipur Amendment) Act, 1982 (Manipur Act No. 3 of 1983). The long title of this Amending Act simply states that it is an act to further amend the Code of Criminal Procedure, 1973. Section 1(3) of this Amending Act provides that it shall come into force from the date of publication in the official gazette. S. 3 of this Amending Act introduced certain changes in the s. 167 (2) of the Principal Act (CrPC) by substituting the words of 60 days and 90 days into 120 days and 180 days, wherever they occur. The said Amending Act thus extended the period of detention from 60 days and 90 days to 120 days and 180 days respectively. However, without having privy to the Assembly debates, it is not worth to speculate as to the rationale for such an extension. S. 5 of the Amending Act also introduced a new section, s. 439A in the CrPC, making the provisions of bail more stringent.
Now, let us move to 1983. The Code of Criminal Procedure (Manipur Amendment) (Amendment) Bill, 1983 was introduced and passed by the Manipur Assembly on 29.09.1983. Thus it became the Code of Criminal Procedure (Manipur Amendment) (Amendment) Act, 1983 (Manipur Act No. 3 of 1984). The long title of the Act reads that it is an Act to amend the Code of Criminal Procedure (Manipur Amendment) Act, 1982. And it becomes interesting here. Very interesting actually. S. 1(2) of this said Amending Act sought to amend or replace the whole wordings of section 1 (3) of the Amending Act of 1982, as to the operability of the Act. It is reproduced here as follows-
“2. In the Code of the Criminal Procedure (Manipur Amendment) Act, 1982 (Manipur Act No. 3 of 1983), hereinafter referred to as the Principal Act, for the sub-section 3 of section 1, the following shall be substituted namely-
“3. It shall come into force, on its publication in the official Gazette in such area of Manipur and shall remain in force during such period as the notification issued section 3 of the Armed Forces (Special Powers) Act, 1958, declaring that area to be disturbed area shall be in operation, but its expiry under the operation of this sub-section shall not affect-
(a) Previous operation of, or anything duly done or suffered under, this Act, or
(b) Any right, privilege, obligation or liability acquired, accrued or incurred under this Act, or
(c) Any investigation, legal proceeding, or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, And any such investigation, legal proceeding, or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if this Act has not expired”.
Hence, it is safe to assume that extension of the period of detention up to 120 days and 180 days as envisaged under S. 167 (2) CrPC shall only be limited to those areas where disturbed area has been declared under the Armed Forces (Special Powers) Act, 1958. However, since 2004, disturbed area status tag has been removed from the Imphal Municipal area. Again, it is not worth speculating much about this legal quagmire, unless all the relevant and subsequent gazette notifications have been properly studied and analysed. But a start can be made, and clarifications can be sought for.
The bigger picture is always the normalisation of the extraordinary circumstances here in Manipur. There are end number of such instances, where we seem to have taken for granted as part of our daily lives, what is supposed to be of urgent and temporal in nature.
Take for another instance, cases registered and persons arrested under the Unlawful Activities (Prevention) Act. From the data available, it can be seen that persons arrested under the UA (P) Act, accounts for more than 25 percent of the total prisoner population in Manipur at any given point of time. This is however not a new matter, as various mainland media have been flagging this issue from time to time. UA (P) Act is a special law and is dreaded almost in all parts of India. There is enough literature available which highlights its ‘draconian’ nature. One of the main issues which have been repeatedly emphasized is about the extended period of detention provided for the detenues under this Act. Under this Act, a person arrested can be remanded into police custody for a period of 30 days (as against 15 days as provided under CrPC) and a total of 180 days as against the normal period of 90 days; although, the extension of the period to 180 days is redundant in the milieu of Manipur.
However, what is strange here is that this is treated almost as a non-issue in Manipur. It is treated like an everyday occurrence in Manipur, even though violence and insurgency are supposed to have been scaled down since the turn of the decade. We have become so used to it by now, that we have become numbed to it! The question, however, is not about the legality of the legislation; but rather how we, as a society, are accustomed to living in fear for perpetuity.
Closer back in time, the Manipur Epidemic Diseases (Enforcement of COVID-19 Guidelines) Regulations, 2020, which aims at stricter imposition of penalties for the purpose of enforcement of COVID-19 Guidelines, will make for an interesting study.
The Regulations provides that any person violating the guidelines shall be liable to be imposed the following penalties:
(a) Violation of quarantine guidelines – Rs. 1000/- on each occasion
(b) Failure to wear mask in public places – Rs. 200/-
(c) Failure to maintain social distancing in public places- Rs. 200/-
(d) Spitting in public places – Rs. 500/-
(e) Consumption of pan, gutka, kwa and tobacco in public place- Rs. 200/-
(f) Gathering in excess number of the authorized persons in ceremonies- Rs. 10,000/-
(g) Any other violation of guidelines- Rs. 1,000/-
Strangely though, no definitions have been provided for ‘social distancing’, ‘public place’ or ‘private space’, ‘ceremonies’- whether private or public. Further it has also been left for assumption as to what are the other violations of guidelines. It has also not been clear as to whether sale of gutka, pan and tobacco are also prohibited, or whether consumption of them is allowed in private places.
Further, all the notified authorized persons have been empowered to collect fines against defaulters on the spot, and are directed to maintain proper accounts and will be deposited in the Head of Account of the Police Department, through a treasury challan. And the penalized persons will be issued a TR receipt, as an acknowledgment of the payment of fines on the spot. Here, they have not been given power to compound the offences. They are merely authorized to impose the punishments.
In quite an extraordinary move, the executive branch of the government has been empowered to impose penalties on the spot, sidetracking the whole judicial process. If we are to talk about irony, then this itself should be cause of celebration, as there are always qualms of justice being denied due to its delay. Now, as we have found ingenious ways to skirt the universally accepted procedural process of justice and fairness, there will be no delays. Justice will be delivered on the spot as desired.
The Regulation then goes on to provide that if any person fails to pay the penalty on the spot, such person shall be liable to prosecution under section 188 of the IPC, and the authorized police officer shall take cognizance of the offence on his own or on the receipt of the complaint from the authorized person/ authority.
Now, this is really something. Cognizance of offences is no longer an exclusive judicial function and police officers can now take cognizance of offences under the Indian Penal Code by virtue of this Regulation. But the question arises- Then what? Police officer will take cognizance of the offence, then what? Is the police officer supposed to proceed like a Court- issue summons, record evidence, hear arguments of both parties and pass judgment accordingly? Or whether some other special procedures have been prescribed for the police officers for the purpose of this Regulation? Provisions needs to be clear because there will always be people who will be unable to pay the penalties on the spot. Another question is- can the authorized police officer sentenced the supposed violator to imprisonment in case of inability to pay the fine on the spot? Hypothetically, he can now.
In conclusion, it is needless to mention that criminal justice administration deals with the life and the liberty of a person, in all its glory. The right to life and liberty, in turn, is the edifice on which all nations are built upon. It is not a mere triviality. The moment it is lost, all is lost !!!
Crime and punishment.
The normalization of extraordinary circumstances.
The writer is Deputy Member Secretary Manipur State Legal Services Authority
