Domestic Violence Crime Report in Kerala - a Primary Legal Analysis by Sathish Puthan Madathil, Legal, Risk and Management Consultant.

DOMESTIC VIOLENCE CRIME REPORT IN KERALA - Some Legal worries in securing the Accused from Germany in a domestic violence and attempt to Murder case in Kerala, by way of Deportation or Extradition - by Sathish Puthan Madathil B. Com., LLB, LLM (England), MBA, PGDMM, PGDIM, DIM, Diploma in Banking (Nat West Bank, England), Bangalore, India.

DISCLAIMER

The Views expressed in this article is the author's own view seeing the existing circumstance of the case recently occurred in Kerala, for the purpose to educate enforcement officers, creating awareness, and improve our legal system and not to tarnish the image of any agency. I have the opinion that the Police when receive complaint of violence, particularly from women and children should take immediate steps and should be proactive in their approach. If a prima-facie evidence is available, immediately case should be registered and the perpetrators should be arrested.

Legal Situation of the recent incident of the Kozhikode Domestic Violence including Attempt to Murder case. My effort is to do a legal analysis on the above case situation in which the main accused fled to Germany. There is proverb which I quote "Stitch in time saves Nine", unfortunately in this incident the Kerala Police failed in this resulting in more difficult situation for the Police to arrest the perpetrator of the crime. I am trying to look what went wrong in this case ans suggesting some points which may be helpful for the investigating officer in the future, which I believe :-

1. It is alleged that the Police thoroughly failed to take proper legal action as First Point of Contact in this case. When an educated newly wed bride approached the Police Station in the Kozhikode with a complaint of domestic violence supported by visible injuries in her body, the Police reportedly didn't take the complaint seriously and failed to do swift action. They also failed to analyse the complaint and the circumstance of the case, for the reason known to them. According to the victim they had not even properly heard the complainant. Situation is a lady who approached Police Station with a traumatic condition and injury, and with an oral or written complaint that she was attacked by her husband and also attempted to kill her. As per the Law, Law and Order is State subject and even without a complaint, with an information that a crime had occurred Police can act swiftly and can also register a Suo-Motto case, but always recommended to take a complaint. In this case the lady approached the Police Station with her parents.

1(a) She also alleged that the Police officer behaved very badly with her, and she got an impression that the Police attitude was that they never wanted to give justice to her. She and her family also suspect that some political or powerful people involved in this case and supporting the accused who is financially very rich and highly influential. The question is why the Police did a very poor, and indifferent response on a serious complaint of a common citizen that too a lady? Kerala government always speak about the protection of the women and children as the priority. But in reality such incidents are happening which is a very serious situation.

1 (b) It is also suspected that the matter might not have properly reported to the Police superiors or may be the superiors also might not have taken a serious view of the complaint also alleged. Kerala Police recently had formed 'Pink Police' Team for responding to crimes against the women, and children which is propagated as the policy of the government. Then why such an approach is taken by the Police? The government now decided to suspend the SHO and other personnel and reportedly starting Inquiry against the officials, as per the report coming in the media.

2. It is also reported that only when the aggrieved party started agitating in the public for not taking a serious approach, the Police became active, and also reportedly invoked the serious offences in the FIR. Initially, they reportedly invoked penal sections for domestic violence, even though the victim had complained on alleged attempt to murder her by the accused who is her husband. There is also allegation that he had already married another lady before and married her without divorcing previous wife.

2 (a) It is reported that Penal Sections like 307 IPC, 325, 326 IPC and other sections of Domestic violence could have invoked immediately and arrest or detention of the accused also not done. It is also not known whether the Police immediately visited the scene of crime and collected evidences against the accused. It has now revealed that the accused had escaped and absconding. He is believed to have escaped to the Germany, because Police failed to secure him on time. It has revealed that he used Bangalore and Singapore route to reach Germany, therefore is now absconding to avoid the legal process. Recently the Police reportedly arrested one of his friends, who helped him to flee the country. It is also reported that he is a German citizen as per the version of the victim and his family. But it is not confirmed and Police now says that it is not true. If he is a foreign national then it will be very complicated situation.

3. Every one is asking that why Police failed to secure and detail the accused before his escape even though prima-facie evidence were available to establish that violence done by him? Report suggest that there are clearly visible injuries seen on the body of the victim. It is also a great concern that why Police had not visited the scene of crime immediately as alleged. The incident reportedly occurred in the house of the accused, in the presence of his family members and Police reportedly failed to collect the scientific and other material evidence from the scene of crime immediately as per the reports. Since there is no eye-witness in this case, collection of scientific evidence is very important and if it is not done by the Police on time, it is a serious flaw on investigation. It is very important to prove the case by way of preservation of the scene of crime in the conventional crimes.

4. If it is correct, it shows that it is not the lack of knowledge of the Police, but willful negligence might have helped the fugitive Rahul to escape from the country. But when pressure mounted, it looks like the Police registered the case to save the face but it was too late. The fact remains whether he is a foreign national or not, he had escaped to a foreign country, where he lives and work and avoiding the arrest.

5. Media report suggest that as per the version of the Police, accused escaped to Germany only before the Look Out Notice. They now reportedly argue that the Blue Corner Notice is initiated through the MHA, MEA and AD Interpol, CBI, New Delhi. But my question is that why they failed to alert the Airports by way of simple Look Out Notice with the FIR reference, which would have prevented the accused from escaping to a foreign country. Interpol reference process not required for the Police to stop or detain a person who suspected to have involved in a Cognizable serious Offence.

5 (a) Interpol Nodal agency in India is CBI. Red Corner Notice (RCN) cannot be initiated because as per the recent amendments RCN will not be issued before a Charge Sheet is filed by the agency (under Section 173 of the Cr PC 1973), which is an Indian Law. As per the guidelines of the INTERPOL HQ, Lyons, France RCN is issued only if the Charge Sheet is filed before a Court of Law against the accused or accused is convicted by proclamation of the Judgment of a jurisdictional Judicial Court of Law. Since only FIR is registered in this case under Section 154 Cr PC, now Blue Corner Notice only can be initiated. So what Police now done is appropriate. At this stage they cannot get a RCN issued.

6. INTERPOL have Regional Operations Centers in Singapore and more effective and speed up communication is possible to prevent some fugitive from escaping after committing a Serious Crime. India was recently the host of the INTERPOL Annual Meeting at New Delhi. There are lot of fast communicating process to prevent any accused being escaped. But with the BCN or RCN it is not easy to Deport the accused Rahul to India if he is a foreign national as stated by the victim and his family. If that is true only 'Extradition' is possible only after doing the time taking Extradition process in the German Courts, where the fugitive will be given all opportunity to defend. In that case all the evidences needs to be translated in to German language and documents should be sent to the German Federal Police, after filing the Charge Sheet along with the NBW without a specific date of expiry. It mean a small omission can make this process more complicated. If the accused is not a foreign national, the process will be more faster and we can get him deported to India once he is found and arrested by the Interpol, German which is the Federal Police Department of the Germany.

6 (a) The author of this article itself faced difficulty in getting a fugitive from France in one of the CBI Cases, in a situation where the accused became French Citizen and the French Court dismissed Indian Extradition request. Lot of money spent in engaging a Lawyer who can practice in French Court as Special Prosecutor by India. But still we failed to satisfy the French Court about the seriousness and gravity of the offence committed by the Indian origin fugitive who was the French Citizen. But after some time through some other method CBI was able to get him or secure which is a big story.

7. Experts also suggest that the political and Consular influence or pressure to the German Government from Indian Government is required to get him extradited to India (if he is a foreign national) and it is long legal process of Extradition Trial as already stated above in this article. The German Court also will verify all evidences usually to give any order. If he is a permanent resident with Indian Passport also things are not that easy. Accused may plea that if he is deported he will be persecuted and will not likely to get justice, and may also plea that this case is an effort to fix him in a false case which is a against the interest of the justice. He may also seek Political Asylum to avoid the arrest and deportation.

7 (a) The worst scenario that if he is a German Citizen, then Kerala Police have to file the Charge Sheet, and also have to a give declaration to the German government that if the fugitive is extradited we will not give any Capital Punishment to such fugitive. The German Court also should satisfy that there is a proper case is made out. Rahul may argue that he is a political victim in which case is fabricated etc. and also try to establish Benefit of Doubt before the German Court. So the process is lengthy. But if he is an Indian Citizen he can be deported, after locating him on the basis of Blue Corner Notice

7 (b) If he is an Indian Citizen, he may go for Political Asylum or any other process. If he is a foreign citizen of Germany, government will give him all the protection to prove his innocence if any. So it is fact that action not taken timely will not complicate and delay the process.

8. The other procedure is through Mutual Legal Assistance Treaty [MLAT], in which India must have a Bilateral or multi lateral agreement with the Germany. But the bad news is that Germany earlier on our request in other cases has expressed its inability to sign the Mutual Legal Assistance Treaty (MLAT) with India citing its provision for" Death Penalty" in our Legal System as Punishment which Germans doesn't consider as an Administration of Criminal Justice like India. We may have to satisfy them that the offence committed are not coming under the scope of Capital Punishment since the victim is still alive and that India invoke such punishments only in the case of rare of the rarest cases only. We have to assure that only the offences which are likely to be proved in the Court, he will be punished.

9. So who is responsible for messing up this case ? All delay and complications which is likely to happen in this case, unfortunately the blame should be given to the most efficient and reputed Kerala Police, since reportedly they failed to take immediate action of securing the accused by detaining him immediately. Police by default had given full opportunity to a fugitive to fled the country after committing a grievous and heinous crime in Kerala, may be intentionally done or because of the poor legal knowledge or lack of training of the SHO and other Police officials of the referred Police Station of the District : Kozhikode.

CONCLUSION:

Indian Government MEA and the agencies in India have to shed sweat to get the fugitive back for putting under the Criminal Justice Trial in this case.

Sathish Puthan Madathil

Formerly a Federal Police Investigation Officer.

Presently Legal, Risk and Management Consultant for Corporate.

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