Bulldozer (Shiv)Raj: MP govt is going overboard with its might-is-right strategy

2022-04-26 08:21:23 By : Mr. David Xue

File image of MP chief minister Shivraj Singh Chouhan. (Photo Credit: PTI)

Rajasthan chief minister Ashok Gehlot on Thursday slammed the BJP government in Madhya Pradesh for demolishing homes of riot accused in Khargone without any probe and urged people not to tolerate those who act against the Constitution. "Without any investigation, without being found guilty, you go and demolish someone's house. Even the chief minister and the prime minister do not have this right," Gehlot said.

Earlier, Congress had accused the BJP of "sponsoring" the recent communal violence in parts of Madhya Pradesh during Ram Navami and alleged that the houses of the riot accused were razed without due legal process.

"Who raised the slogans and who instigated the riots is not known. The (MP) Police made a list and went with bulldozers and started demolishing the houses (in Khargone). The poor people were crying when their houses were demolished. What kind of rule is this?" he asked.

Referring to an April 2 incident in Karauli, Rajasthan, where a bike rally, which was held to mark the Hindu new year was pelted with stones, Gehlot said the BJP wants his government to act the same way as they did in Madhya Pradesh. Over 30 people were injured in the Karauli incident.

"The BJP is talking about the arrest of innocent people in Karauli. In the eyes of the police, they are accused. So, should our government go and run bulldozers as well?" Gehlot said, adding, "After the Karauli incident, we held a meeting with police officers. We told the officers that there should not be another such incident. Not a single untoward incident took place in Rajasthan on Ram Navami, whereas in many states, riots broke out and now their houses are being demolished."

Faced with criticism for using bulldozers to demolish houses and shops of those accused of rioting in Madhya Pradesh's Khargone, the state police defended its action saying the goal is to "instil fear" of financial loss among the accused.

So far 45 structures have been demolished in Khargone, which saw violence during a Ram Navami procession on 10 April. However, reports said that majority of the people whose houses and shops have been demolished in the state are from the minority community.

Most of the structures have been reportedly demolished without a court order. The state police defended its actions saying that if the "structures are illegal", the authorities can demolish them under relevant sections. 

 AIMIM chief Asaduddin Owaisi questioned the selective targeting of Muslims under the bulldozer drive. Accusing MP chief minister Shivraj Singh Chouhan of showing a biased attitude towards the Muslim community, Owaisi also asked the government to reveal details of the law under which it demolished the houses in Khargone.

Amnesty International too has questioned the use of bulldozers, saying that the demolition of houses "without notice and other due process requirements is a major blow to the rule of law".

On the demolition of homes in Khargone, Madhya Pradesh pic.twitter.com/7aCLWFZs5M

Reports have also emerged of the police using excessive force on Muslims in Khargone. A video clip also shows cops beating Muslim youth in Khargone. News9 has not verified the authenticity of the video.

The Khargone incident, however, is not the first time that houses of Muslims have been targeted by the authorities.

In December 2021, a Shourya Yatra carried out by Hindu groups through a Muslim neighbourhood in Madhya Pradesh's Dhar district had turned violent. Though pelting of stones was carried out by both sides, all the 30 accused were from the Muslim community, reports said.

The authorities later demolished the house of a Muslim man citing a lack of "building permission". The man had allegedly harboured three accused in the case. 

The problems for the accused in the Khargone case are unlikely to be over though. The state has formed a claims tribunal to recover the losses to public and private property during the violence.

In December 2021, the Madhya Pradesh government passed an Act called the Madhya Pradesh Lok Evam Niji Sampati Ko Nuksan Ka Nivaran Evam Nuksan Ki Vasuli Adhiniyam 2021, which allows it to recover double the compensation liable to be paid from those who damaged public or personal property.

Will the claims tribunal take a balanced view? That remains to be seen.

Are law and order implementing authorities permitted to adopt practices that include bulldozing their houses while seeking an accused? The reply is a big No.

The law-enforcing agencies work within the framework of the Code of Criminal Procedure, 1973, and other allied laws. The demolition of the house of an absconding accused who is living jointly with family members, who are not accused in the case, is beyond the power of the police by any stretch of the imagination.

Sections 81, 82, 83 and 84 of the CRPC 1973, provide for the attachment and sale of the property of an accused person or witness whose presence is required by a Criminal Court as the last remedy for compelling his attendance. The procedure laid down must be strictly followed, otherwise, such attachment and subsequent sale will be liable to be set aside. The proper forms for the proclamation, attachment etc, to be used in such proceedings are given in Schedule V of the CRPC.

Under Section 82 of the CRPC, a court can publish a proclamation requiring the accused to appear if the warrant issued against him cannot be executed. According to Section 83 of the CRPC, after issuing such a proclamation, the court may order the attachment of the proclaimed offender's properties. Unless authorised by a court of law, a proclamation authorised under the Code does not have the force of law. The application of investigating officer under Section 82 of the CRPC must be accompanied by an affidavit stating the reasons for the action.

The Lucknow Bench of the Allahabad High Court had recently held that the investigating officer has to seek the help of a court for issuance of proceeding under Section 82 of the CRPC, and only under the orders of a court that any proclamation under Section 82 of the CRPC can be issued.

An absconder is a person who is hiding himself to evade the process of law, even if the hiding place is his own home.

If the proclaimed person does not appear within the time specified in the proclamation, the property under attachment remains “at the disposal of the Government”. It can be sold at once at the discretion of a court when it is liable to speedy decay and if the court considers that the sale would be for the benefit of the owner. But, otherwise, it cannot be sold until the expiration of six months from the attachment and until the disposal of claims of objectors (if any) by a Magistrate.

In conducting sales, the interest/share of the absconding person in the attached property which is to be sold should be clearly specified so as to avoid complications in the future. It has been held by a full bench of the Chief Court of Punjab that only the life interest of an absconder governed by the agricultural custom in ancestral immovable property can be sold under provisions of the Criminal Procedure Code.

If the absconder appears or is apprehended and brought before the Court and satisfies the Court (i) that he did not abscond or conceal himself for the purpose of evading execution of the warrant, and (ii) that he had no such notice of the proclamation as could enable him to attend within the specified time, he can get the property back or its net proceeds if it has been sold.

Section 299 of CRPC 1973 provides that whenever it is proved that an accused person has absconded and there is no immediate prospect of arresting him, any court competent to try or commit such person for trial for the offence complained or may, in his absence, examine the witnesses produced for the prosecution and record their depositions, and such depositions may, on the arrest of the accused person, be used in evidence against him.

Section 47 of the Code makes it lawful for the police to break and enter into the residence of any person in his search being an offender if it had reasonable belief that the person is hiding on the premises. Similarly, Section 80 of the Information Technology Act 2000 also provides such an analogous provision. A similar type of provision had been adopted under the Securities and Exchange Board of India (Procedure for Search and Seizure) Regulations, 2014.

After taking a bird’s eye view of relevant provisions of the CRPC, it is clear that to force an absconder to present himself before courts, the law provides for forcing an absconder to surrender before it only under the mechanism of the CRPC 1973. In the process, his house/properties can be seized and even sold by order of competent courts. Even if the property is sold, due to fear of decay or after the expiry of the period then too once the absconder presents himself before the court the proceeds of the sale are liable to be handed over to him/her.

There is no provision under the CRPC to demolish the house of an accused by the police of its own free will as is being done by the Uttar Pradesh Police. The legislature consciously had not provided any such unilateral powers to the police and kept it within the jurisdiction of courts under the CRPC. The legislature provided such balance as they were aware that any day the power can be misused by the police.

A senior police officer in Lucknow has denied that the Uttar Pradesh Police used bulldozers to demolish a portion of the accused person's house and promised to take action if it turns out to be true.

This policy of antiphrasis as euphemism or litotes by senior officers is actually a silent approval of what is happening at the ground level. Who will identify the junior officer who acted irresponsibly or under the clandestine sanction of his seniors?

No sanction on paper could be found. As seen often, the lower rank officer will remain hidden from the public and media gaze and later on will be placed in a better place or wherever.

The litotes suit most political establishments which want to remain immune from any scrutiny. They are using bureaucracy to maintain their image amongst their constituency.

It is clearly indicated that the police is not acting brazenly but under direction from the political establishment of the State. This fact can be deciphered from the election speeches and otherwise propaganda of Buldozer during and after the election. In a recent interaction with the media, UP chief minister Yogi Adityanath had said, “I have sent the bulldozers for repair. Once they start working again after March 10, all those who are hot-headed now will be silenced on their own."

Democracy has to work and flourish under the constitutional mechanism and the authority of the majority is limited by legal and institutional means so that the rights of individuals and minorities are respected. This is the form of democracy practised in Germany, Israel, Japan, the US, and other countries.

This framework is intended to assist interested persons in various nations in establishing or improving curricular programmes which foster an understanding of and support constitutional democracy. The outline must be adapted to fit the circumstances and the needs of individual political communities.

But if some extra-constitutional mechanism is allowed by the political establishment to override the law and to implement its desires to go beyond the law, then certainly something very serious is happening and the same must be taken serious note of. The thin line between democracy and despotism must be held in reserve with strong actions to control the bulldozer otherwise it will bulldoze democracy itself.

The author is a senior advocate in Allahabad High Court

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