Interrogation and Investigation by the Police in Dowry Cases

Interrogating accused persons is an integral part of police work. This is as much applicable to dowry torture accused persons as it is to those under any other criminal law. However remember that the police is not all powerful. Police work in criminal matters is carried out totally under the supervision of the courts, even though the police is de jure a subordinate organ of the executive. They cannot throw their weight around, and the number of policemen who face disciplinary and legal action every year is quite large. Remember that the courts are not there just to punish criminals. It is their job to protect the human, fundamental, and legal rights of all citizens, including criminals. One good thing about our country is that there is rule of law here. It is a different matter that the laws are sometimes bad and/or applied selectively. Such things can be resolved by an alert citizenry with time.

Coming back to the police. They are bound by the law of the land as much as you and I. There are many things which you ought to know when dealing with the police, because this is one department which has a lot of potential for black sheep. One thing which you must remember is that you are going to be dealing with people who are not very high up in the hierarchy. So they are not going to be all-powerful people even within their town police department, leave alone the state level. This is a good thing because there will always be a number of higher officers to whom you can complain about the behaviour of the people who are working on your case, in case you feel that they are doing illegal things.

The first important thing is that you have the right to a lawyer. There will be people who will tell you that you have no such right in India, and that this is an American concept. They are probably under this impression because when they see Indian movies in which the police arrests someone, all they say is "You are under arrest" while the American policeman says "You have the right to remain silent. You have the right to an attorney. Anything you say can and will be held against you." This gives common people the impression that there are no rights for people who are arrested, in India. Nothing can be farther from the truth.

The second right that you have is that the police cannot enter your house at any time they wish to come. They have to get an order from a higher officer before they can go to anybody's house. They only have the right to visit houses in connection with any investigation or administrative work or to apprehend fugitives from the law. They cannot enter a house during any time except daytime if they are visiting in connection with a criminal investigation. They cannot enter when a woman is alone in the house. They cannot enter without a woman officer if they have to talk to a woman. If a woman is in purdah then they have to wait outside until she gets suitably attired. They cannot enter the portions of the house which are reserved for women amongst certain groups of people.

The police cannot demand even a glass of water or a chair from the resident of the house. They have to bring some respectable members of the locality with them if they are coming to visit for a search and seizure task. You are probably aware of the Anglo-Saxon concept of a man's house being his castle. Although the law in India is not as protective of a man vis-à-vis his home as in those countries, still there are a number of provisions in this respect.

The third right which you have is the right to have a lawyer of your choice to represent you. It is not clear to this writer whether people in India have an absolute right to have a lawyer of their choice, but one thing which is certain is that this right definitely exists if the accused person is willing to pay the fees of such a lawyer. The lawyer can represent you in court as well as be with you while you are being interrogated. You can consult the lawyer from time to time during the questioning according to some writers. Others say that the lawyer can be present during the whole of the interrogation but he cannot dictate answers to you.

Your lawyer can help you to avoid illegal lines of questioning. The police have no right to ask you questions whose answers may amount to your incriminating yourself. They also do not have the right to force you to undergo a marathon interrogation session. Remember that every country in the world which wishes to be counted amongst civilised countries has a right against self-incrimination in its law. This is the single most Important right in criminal law, and is a fundamental right, recognised under Article 21 of the Indian Constitution, as a part of the right to life. You cannot be forced to confess to any crime which you might have committed. Confessions made before the police are not admissible in court at all. This can be circumvented by the police if they are able to make some recoveries on the basis of a confession, but such things happen only in very very serious matters.

If a confession has to be made, it is made before a judge, and there can be NO police custody for any accused after he is brought before a judge for his confession statement, which he may make or may refuse to make. The accused is sent straight to judicial custody after such a court appearance.

Further, the police cannot call your mother or your sister to the police station for interrogation. This is not allowed under the law. They have to go to the house of all accused persons who have not yet reached 15 years of age or who are members of the female gender. Any questioning of ladies can be done only in the presence of their male relatives, and women can only be searched by women. Further, a woman can only be brought to a police station if she has been formally arrested.

However, policemen are terribly scared of bringing any woman to a police station under any circumstances whatsover. Bear in mind that if a woman accuses a policeman of raping her in a police station, then he has practically no escape from a conviction and subsequent life in prison. This is because the law specifies a presumption of guilt in the case of a custodial rape accusation. The punishment for custodial rape is the same as that for gang rape, that is to say, not less than 20 years in jail.

There are a important Supreme Court and High Court decisions which protect accused persons to an extent and in a manner which has very satisfactorily bolstered the intent inherent in legislated statute. One such is Nandini Satpathy vs. P.l. Dani case judgement, delivered by a full bench of the Supreme Court in 1978. The three judges made several germane remarks in their detailed judgement. Some examples are "Art. 20(3) is not a paper tiger but a provision to police the police and to silence coerced crimination.", "But we confess that the statement of the State calls to mind the words of Hamlet : "The lady protests too much, methinks."" and "'Compelled testimony' must be read as evidence procured not merely by physical threats or violence, but by psychic torture, atmospheric pressure, environmental coercion tiring interrogative prolixity, overbearing and intimidatory methods and the like –not legal penalty for violation. So the legal perils following upon refusal to answer or answer truthfully cannot be regarded as compulsion within the meaning of Art. 20(3). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused strongly suggestive of guilt it becomes compelled testimony violative of Art. 20(3)"

This last remark is a very broad and satisfactory definition of compelled testimony. If you are called for interrogation by the police, all you need to know in order to protect your rights is this definition of compelled testimony, and nothing more.

Article 20(3) of the Constitution lays down clearly that "No person accused of any offence shall be compelled to be a witness against himself." This statement has been interpreted by the judiciary in a very positive way, and as a result bans on torture, beating, and coercive questioning have been reiterated. The right to a lawyer, to not be questioned using a lie-detector or via narco-analysis, as well as the right to refuse to answer questions which are of the nature of a demand for a confession are all rights which are derived from this article of the Constitution.

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Published by Manish Udar

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Last updated on 2nd September 2013
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