The cascade of sexual abuse allegations against male members of the Malayalam film fraternity has caused a serious dilemma for the Kerala police. Is the police force obliged to act on these revelations? Should it register cases on the basis of complaints filed by random individuals at police stations across Kerala?
According to statutes, the police are bound to act. Section 157 of the Criminal Procedure Code (Section 176 under the new Bharatiya Nagarik Suraksha Sanhita - BNSS) calls for suo motu action. It says that the police should investigate on the basis of "information received or otherwise". The word "otherwise" is a clear legal prompt to the police to act if there is knowledge of offence, irrespective of whether the police had received the information directly.
In the context of the latest charges of sexual abuse, particulars are available in the form of the Hema Commission report and the public disclosures women in the industry have made through the media.
Cloning sexual abuse complaint
More problematic for the police is the legal stipulation that the police should act even if complaints are filed in police stations by random individuals unrelated to the victims.
Already, the Vyttila police station in Kochi has received two complaints, one against Chalachithra Academy chairman and filmmaker Ranjith and the other against actor and the general secretary of Association of Malayalam Movie Artists, Siddique. With more women coming out, more such complaints in various police stations are expected. The state police chief, too, has received 11 complaints on the issue.
The multiplicity of a complaint of similar nature is also a by-product of Bharatiya Nagarik Suraksha Sanhita (BNSS), the reformed Criminal Procedure Code (CrPC). The reformed criminal law sanctions the existence of complaint clones.
Under Section 173 of the BNSS, a complaint regarding a cognizable offence can be filed in any police station. "Irrespective of the area where the offence is committed," is how the statute words it. "This empowers people to file complaints of cognizable offences anywhere in the country, not knowing that a similar complaint had been registered elsewhere,” a top police officer told Onmanorama.
Policeman’s dilemma
Failure on the part of the police to take action against cognizable offences could invite punitive measures under 199(c) of the BNSS. Most of the offences mentioned in the Hema Commission report and also revealed in the public utterances of victims (rape, outraging the modesty of women, insulting the modesty of women, use of workplace authority to force sexual union) are cognizable offences.
Under 199(c) of the BNSS, if the public servant (SHO) fails to record the information on atrocities against women, he "shall be punished with rigorous imprisonment for a term which shall not be less than six months but which may extend to two years". And Section 218(1)(b) of BNSS (197 CrPC) is harsh on a negligent officer. It allows prosecution to be initiated against such an officer without even securing sanction, as is usually mandatory in the case of public servants.
This legal requirement to act on any complaint of sexual abuse can lead to widespread duplication of cases. If the law is adhered to in letter, all police stations in Kerala that have received sexual abuse complaints from random individuals on the basis of the Hema Commission report or public disclosures of women will have to investigate the same crimes. "This would be anarchy," said Suneesh Kumar R, a retired IPS officer and now a practising lawyer.
It is perhaps to avoid such an organisational disarray, and to sidestep a possible legal challenge, that the Kerala government formed a seven-member Special Investigation Team (SIT) on August 25 to probe the allegations of sexual misconduct faced by women in the Malayalam film industry.
Equating sexual abuse with domestic cruelty
Nonetheless, the existence of the statute will always remain a legal threat to station house officers. Suneesh suggests a way out. Along with many other senior officers, Suneesh too had long before mooted an amendment that would apply the conditions of 498(A) IPC (Section 85 of Bharatiya Nyay Samhitha - BNS) to cognizable offences related to sexual abuse.
Section 498(A) deals with punishment for subjecting a married woman to cruelty, a non-bailable cognizable offence like sexual harassment. However, unlike in the case of sexual abuse, only a limited group of people can file a complaint of cruelty in the police station. One, the victim. Two, any person related to the victim by way of blood, marriage or adoption. Three, if there is no relative, a public servant notified by the government.
Meaning, random individuals with no links to the victims are barred from filing a complaint of sexual abuse in a police station. "Such a step can prevent unnecessary proliferation and duplication of complaints," Suneesh said.
More importantly, this can thwart revenge complaints. "Certain people could lodge a false complaint of rape out of vengeance. On the face of it, this might seem a move in favour of a victim. But once the police initiates action, this will cause irreparable damage to the standing and identity of the woman who has been wrongfully painted as a victim,” Suneesh said.
In addition, the top police source who was worried about the potential multiplicity of cases said a person wanting to file a complaint should also be asked to produce an affidavit saying that such a case has not been filed in any other police station in the state. "This can prevent the unnecessary inflation in the number of cases," the officer said.
