The police tend to "over charge" by adding extra penal provisions, when registering an FIR, especially in relation to sexual offences, and this often gets carried over into the charge sheet and is relied upon by magistrates to deny bail during trial, a two-member panel told the Delhi High Court today.
The panel said that the police while registering FIRs in sexual offence cases often also adds charges relating to trafficking and under the Protection of Children from Sexual Offences (POCSO) Act.
Set up by the high court in November last year to examine the issue of undertrials languishing in prisons here for several years without bail, the panel gave its report after examining the records of several women lodged in the Tihar jail during their trial in connection with rape and other cases.
The report, placed before a bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar, said that the trial courts routinely deny bail based on seriousness of offences alleged against the accused instead of undertaking a risk assessment of each accused.
The panel of professors Mrinal Satish and Aparna Chandra from the National Law University said that magistrates determine whether an accused should be granted bail based on the stand of the police and prosecution.
Apart from that, the panel also said that decisions of the Supreme Court and the high court with regard to bail are not being followed by the lower courts.
The report said that the only viable and long-term solution to the problem of extended undertrial incarceration was "systemic reform that reduces unnecessary arrests".
It also said that the examination of court records revealed that at present, the decisions to arrest, remand in custody and grant or denial of bail, are being taken in a mechanical manner.
"Constitutional and statutory protections as well as directions of the Supreme Court and this court are being flouted with impunity by the police, without adequate oversight or redressal by trial court judges," it said.
The panel sought directions to the police to not register FIRs or file charge sheets against women for offences of rape, molestation, voyeurism, stalking or any of these crimes coupled with the penal provision of common intention, "unless they are accompanied by an allegation of abetment or conspiracy to commit these offences".
The report also stated that magistrates have a "solemn constitutional duty" to ensure that the police adhered to norms relating to arrest.
It asked for directions to the magistrates or trial court judges to not take cognisance of cases where women are alleged to have committed offences for which they cannot be prosecuted.
The panel's report was filed in a PIL initiated by the high court on its own pursuant to a letter received from Supreme Court judge Kurian Joseph.
Justice Joseph had received an appeal from 612 women prisoners from the Tihar jail, complaining of overcrowding in Jail No. 6 where they were lodged, delay in disposal of their cases and non-release on bail if they are unable to fulfil conditions of bail bonds.
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