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INDIA: Custodial torture on mistaken identity of a man in Habra police station and fabrication of false charges

November 11, 2005

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ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAM

11 November 2005

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UA-206-2005: INDIA: Custodial torture on mistaken identity of a man in Habra police station and fabrication of false charges

INDIA: Police torture, fabrication of charges, blatant violation of law

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Dear Friends,

The Asian Human Rights Commission (AHRC) has received information from MASUM, a human rights organisation in West Bengal about the arrest and detention of Mr. Samir Dutta of Kalyangarh Kalitala Police Station, 24 Parganas (North), West Bengal, India on mistaken identity.  The victim was taken into custody and further tortured brutally forcing him to admit a false identity of another person in the same name regarding a crime related to Essential Commodities Act.

On the 12th October 2005 Mr. Samir was arrested in lieu of a warrant of arrest issued by the 4th Additional District & Sessions Judge Barasat in connection with an offense chargeable under the Essential Commodities Act.  In fact the offense in which Mr. Samir was arrested was committed by another person in the same name.  Once this was brought to the notice of the court, Samir was ordered to be released. However, the local police in order to save their face and also to justify the arrest have fabricated a false case against Samir. This case is now pending inquiry.

Samir when produced in court in ration to the crime under the Essential Commodities Act was released by the court acknowledging the mistaken identity but only after a petition filed by Samir’s father in the court. In the mean while Samir was subjected to severe torture in custody forcing him to confess to the crime in which he was mistakenly arrested and was detained in custody for 15 days, for an offense he had never committed.

The AHRC is deeply concerned about this case and calls for your urgent intervention in this case.  Often such cases or mistaken identity are artificially created by the police in West Bengal resulting in innocent people being convicted on charges that they have not committed.  Please ask the Director General of Police to order an impartial inquiry into this incident and see that the perpetrators are duly punished.  Adequate compensation must also be provided to the victim who was tortured in custody for the injuries he sustained and for his illegal detention.

Urgent Appeals Desk

Asian Human Rights Commission (AHRC)

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DETAILED INFORMATION:

Victim: Mr. Samir Dutta, son of Gopal Dutta residing at Kanyangarh Kalitala within the jurisdiction of Ashok Nagar Police Station, 24 Parganas (North), West Bengal, India.

Place of incident: Habra Police Station 24 Parganas (North), West Bengal, India.

Date of incident: 12th October 2005

Alleged perpetrators: 1, Mr. Bahshar Samanta, Assistant Sub Inspector Habra Police Station 2, Officer-in-Charge the Railway Police Station Barasat.

Case Details:

Mr. Samir Dutta was taken into custody by the officers of Habra Police Station.  Prior to this arrest there was a warrant of arrest issued by the 4th Additional District and Sessions Judge Barasat in connection with an offense chargeable under the Essential Commodities Act.  The police took custody of Mr. Samir on the mistaken identity of Mr. Samir Dutta of Asrafabab Colony which is under the jurisdiction of Habra Police Station.  The warrant of arrest issued by the court was for an offense under the Essential Commodities Act for allegedly involving in smuggling of rice.  The police, when they realised that they had taken the wrong person into custody tortured Samir in custody forcing him to confess that he was the other Samir that the police were looking for.

Samir’s father who came to know about the arrest made a complaint through a lawyer on 25th October 2005 to the 4th Additional District and Sessions Judge claiming that his son was arrested on mistaken identity.  The court on consideration of this petition released Samir forthwith exonerating him of all charges leveled against him.  However, the police officials from the Habra Police Station in an attempt to legitimize the arrest registered a false case under Section 34 (5) of the Police Act vide General Diary Entry No. 581 dated 12 October 2005. Samir has denied this charge too and this case is pending trial.

This case is a clear violation of the guidelines regarding arrest laid down by the Indian Supreme Court regarding arrest and detention procedures in the D.K. Basu case.  It is also alleged that arrest of Samir was intentionally carried out so as to save the real culprit form being booked and brought to court.  Such acts of charging innocent people instead of the real criminals is a common phenomena in West Bengal where the police are alleged to have been helping hardened criminals after accepting bribes from them.  Unfortunately in this case apart from arrest, Mr. Samir who is innocent of any charges was also brutally tortured in police custody to force him to confess the crime and also to admit an identity which suited the details of the accused mentioned in the warrant issued by the court.

The AHRC condemns this act of brutal torture and blatant violation of the law.  The AHRC has repeatedly asked for the ratification of the Convention against Torture by India.  The ratification and subsequent legislation and implementation would considerably bring down the acts of torture committed by law enforcement officers in India.  This process would also remove the impunity enjoyed by law enforcement officers making them liable for any act of torture and custodial violence.

SUGGESTED ACTION:

Please write to the Director General of Police to order an impartial inquiry into this incident and see that the perpetrators are duly punished and the victim is compensated for the damages he suffered while he was in custody.

Sample Letter:

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Dear

INDIA: Custodial torture of a man in custody at the Habra Police Station on mistaken identity

Victim: Mr. Samir Dutta, son of Gopal Dutta residing at Kanyangarh Kalitala within the jurisdiction of Ashok Nagar Police Station, 24 Parganas (North), West Bengal, India.

Place of incident: Habra Police Station 24 Parganas (North), West Bengal, India.

Date of incident: 12th October 2005

Alleged perpetrators: 1, Mr. Bahshar Samanta, Assistant Sub Inspector Habra Police Station 2, Officer-in-Charge the Railway Police Station Barasat.

I am deeply concerned to hear about the case of Mr. Samir Dutta where he was arrested and tortured to confess to a crime which he had not committed.  Mr. Samir was arrested by the Habra Police on 12th October 2005.

Mr. Samir was arrested on mistaken identity and in spite of the fact that the police realised that the real culprit is someone else with the same name the attempt of the police was to torture Mr. Samir in custody to force him to confess to a crime which he has not committed.  Mr. Samir was tortured by the police asking him to state before the court an address which suited the address as it appeared in the arrest warrant.

It is alleged that Mr. Samir was brutally tortured while he was in custody and that he had suffered physical injuries as a result of the torture.  It is also alleged that a false charge has been framed against Mr. Samir by the police to justify their arrest and also to escape the liability when the case was challenged in court.

It was only after the intervention of Mr. Samir’s father through a petition which was filed in court that Mr. Samir was exonerated.

I therefore call upon you for your urgent intervention in this case.  Please order an impartial inquiry into this incident and see that the perpetrators are duly punished.  Adequate compensation must also be granted to the victim for his illegal arrest and the torture he suffered while he was in custody.

I further urge the government of India to ratify the Convention against Torture without delay and introduce stringent domestic legislation to prevent such cased in future.

Yours sincerely

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PLEASE SEND LETTERS TO:

Mr. Subhas Awasthi
Director General of Police
Government of West Bengal
Writers Buildings
Kolkata-1
West Bengal
INDIA
Fax: +91 33 2214 4498 / 2214 5486
Email: padgp@wbpolice.gov.in 

PLEASE SEND COPIES TO:

1. Mr. Buddhadeb Bhattacharjee
Chief Minister
Government of West Bengal
Writers Buildings, Kolkata - 700001
West Bengal
INDIA
Tel: +91 33 2214 5555 (O) / 2280 0631 (R)
Fax: +91 33 2214 5480 / 2214 1341
Email: cm@wb.gov.in,  cm@writerscal.gov.in 

2. Justice Shyamal Kumar Sen
Chairperson
West Bengal Human Rights Commission
Bhabani Bhavan, Alipore
Kolkata - 700027
INDIA
Tel: +91 33 4797259 / 5558866
Fax: +91 33 4799633
Email: wbhrc@cal3.vsnl.net.in 

3. Prof. Manfred Nowak
Special Rapporteur on the question of torture
Attn: Mr. Safir Syed
OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9230
Fax: +41 22 917 9016 (general)
E-mail: ssyed@ohchr.org

Document Type :
Urgent Appeal Case
Document ID :
UA-206-2005
Countries :
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.