The law is clear and direct. If a woman lodges a complaint against a man of sexual abuse, the police need to register a First Information Report straightaway.
This is what the police had done in the case of Jose Thettayil, Angamali MLA, when a 30-year-old woman lodged complaint. He was charged with non-bailable offence of committing rape, about which the High Court raised doubts subsequently.
But then, the police have little option. A senior officer in the State Police said the recent amendment to the Code of Criminal Procedure (CrPC) has changed the focus of investigation in cognizable offences drastically. “Now, the police officers have no other option but to register an FIR and look into the merit of the complaint later. This law leaves enough space for misuse and for the first time, it brings in gender discrimination. Earlier, the complainant was addressed as a person, but now it is clearly mentioned as a ‘woman’ lodging a complaint against a ‘man’,” said the officer.
The Criminal Law (Amendment) Act, 2013 says that Section 166 A shall be inserted in Criminal Procedure Code under which if a public servant “fails to record any information given to him under sub section (1) of Section 154…shall be punished with rigorous imprisonment for a term which shall not be less than six months.”
The officer said that in the case of Mr. Thettayil, the police had to register the FIR. But the same logic did not work when a complaint was lodged against A.T. George, Parassala MLA.
T.J. Thomas Kutty, Superintendent of Police, Thiruvananthapuram Rural, said the complaint was false and statements given by the complainant was contradictory. He filed a report to the State Police Chief saying that the complaint did not warrant action against the legislator.
“This is a clear instance of double standard. The police have no discretion at all; they have to register a case. Also, registering the FIR does not make arrest a matter of course, as Supreme Court has observed in Sitaram Mehtre case of 2010. The FIR should have been registered against Mr. George as it was done against Mr. Thettayil,” said Sasthamangalam Ajith Kumar, a lawyer specialised in criminal cases.
The victim in Suryanelli sex scandal also had the same complaint when the Station House Officer at Chingavanam police station refused to accept her complaint to include P.J. Kurien, Deputy Chairperson of the Rajya Sabha, as accused in the 17-year-old sexual abuse case and replied that “case cannot be registered according to the Indian Constitution.” The reply of the SHO was one of the exhibits at the revision petition filed by the Suryanelli girl at Thodupuzha Sessions Court. “The girl has every right to invoke the Section 166A against the SHO,” said Anila George, the advocate representing the victim.
Another legal expert said that Section 166 A can be invoked only in cognizable offences. On conditions of anonymity, he said that “while complaint against Mr. Thettayil clearly mentioned accused having sex against her will, this was not there in the complaint against Mr. George. This puts the police on safe grounds,” he said.