By now everyone has heard about the murder of Satyendra Dubey for daring to stand against the road Mafia in Bihar. A young IIT-Kanpur engineer, Satyendra attempted to expose the corruption within the National Highway Authority’s road construction project in Bihar. The story is not unfamiliar and the basis of countless Bollywood films. The only difference is that in the film the hero not only exposes the corruption but comes out triumphant winning the hand of the fair maiden in addition. The reality is naturally sadly different. The criminal-political system nexus is powerful. Blowing the whistle can backfire as Dubey’s case illustrates. People naturally wonder if a senior engineer working for Government of India cannot succeed against organized crime nexus and can be so easily eliminated what a lay person can do.

In the focus upon Dubey’s murder it is perhaps worthwhile to examine why combating corrupt practices is so difficult within the existing mechanism. This article looks at one aspect. Dubey was forced to approach the PMO for his department was not pursuing his complaints. They were indifferent to the charges brought up by Dubey and may be they were hand in glove with the very elements that he was trying to expose. This is a problem not peculiar to the National Highway Authority [NHA].

The very mechanism that forms the basis of criminal investigation in the country needs examination.

Corruption and other forms of crimes are defined in law and the guilt is determined through a due process by the judiciary. The laws prescribe serious punishment for many of these crimes. However, complaints about criminal incidents are entertained by the police who act as gatekeepers to the criminal justice system. A police officer determines if a criminal incident has taken place and only he is empowered to investigate the case. The procedure of taking down the complaint and subsequent investigation is governed by the Code of Criminal Procedure enacted in 1862 and amended in 1973. According to Section 154 CrPC a criminal complaint made to the police is reduced in writing and recorded by the station house officer [SHO]. This section stipulates that whenever a citizen informs the police, or the police learn otherwise about the occurrence of a cognizable crime the SHO shall institute a First Information Report [FIR] which initiates the criminal investigation.

There are several implications of this seemingly innocuous legal proposition. First, investigation by the police can only be done for a cognizable crime. A non-cognizable criminal incident is a minor infraction of the law where police cannot arrest a person except by the order of the court. In all cognizable incidents however, the police have the power to arrest without a warrant. All major crimes like theft, burglary, robbery, cheating assaults, homicide etc. are cognizable offenses under the Indian Penal Code of 1860. However, the police officer may refuse to believe or reduce the gravity of the complaint to make it non-cognizable. This judgment is significant since for a cognizable offense the officer has no discretion and is obliged to record the complaint and begin investigation. The distinction is generally not known to the citizen who remains under the impression that police will act on his/her complaint whereas the matter may simply have been filed away. The police refuse to act and file thousands of such complaints made by the citizens.

Section 154 of CrPC stipulates that whenever a citizen informs the police, or the police learn otherwise about the occurrence of a cognizable crime the SHO shall institute a First Information Report [FIR] which initiates the criminal investigation.
Furthermore, Law places considerable importance to the FIR. The Courts accept this police made document without corroboration. Subsequent evidence however, whether oral or written and documented in the crime investigation diary has to be corroborated since the Law makes the assumption that police story cannot be trusted. Indeed, under Section 162 CrPC, the statement of a witness can only be used by the police for contradiction in the Court. Police declare the witness hostile if he or she deviates from the story told earlier. In the famous case of Bollywood tycoon Bharat Shah, witnesses like Shahrukh Khan were declared hostile by the prosecution for they changed their subsequent statements. It is only the FIR that is believed by the court under the assumption that the police have no knowledge of the incident and thence cannot tailor the story to strengthen the prosecution.

Right from the beginning of the present criminal justice system, around 1860 onwards, the Indian police have developed mechanisms to circumvent these legal restrictions. A common strategy is not to record the FIR immediately as provided by section 154 CrPC. Invariably, the police officers hear the complaint, go to the place of incident, contact witnesses and collect evidence before writing down the FIR. They try to incorporate as much evidence in the FIR as possible since it helps to strengthen the case. This is contrary to Law but a common practice in the country.

Since this practice helps their investigation, senior officers too turn a blind eye towards this circumvention of the Law. Unfortunately, this leaves the SHOs in a dominant position of determining when and which criminal incident to register and which one to ignore. All these organizational practices lead to corruption and misuse of authority. Indeed, citizens commonly experience considerable problems in registering a case at the police station. Frequently, the SHO has to be bribed or approached through some senior officer to lodge the complaint.

Furthermore, many complaints are not recorded or the gravity of offense is minimized to claim that crime is under control. A vast number of crimes are simply not being registered by the Indian police. This so called minimization of crime is a serious and wide-spread problem at all the police stations in the country. The Crime in India-1999, a compilation of police crime reports by the National Crime Records Bureau brings this out in an outrageous manner.

The largest populated state UP, which records high figures for violent and property crimes nevertheless recorded only 43 cases of juvenile delinquency. Bengal has just 4 cases, which is less than the numbers for Goa, and sparsely populated Arunanchal Pradesh. These offenses are about juvenile delinquents of ages 7-18 for both the sexes. Considering that there are around 30-40 million young people in the state, either the figures suggest that in UP and Bengal there are little saints totally bereft of any criminal behavior or else the statistics are terribly inconsistent with the real situation. When small cities like Vadodra (99), Pune (104), Jaipur (87) record more juvenile cases than the large metropolis of Calcutta (only 2 cases) the figures appear horribly wrong and artificial.

The problem of recording and reporting white collar crimes in public sector undertakings is even more complex. In all major public sector undertaking there is a separate department of Vigilance that functions directly under the Chief Executive and acts as the watch dog for improper actions. Largely, the function of the Vigilance units is to keep a strict watch over the personnel to ensure that probity is maintained in the operations of the organization. In large public sector units the Vigilance office is administered by IPS or other police officers on deputation. Sometimes retired army officers are also entrusted with this responsibility. However, most Vigilance units function largely as watch and ward units concerned only about security and providing protection to the management. Their responsibilities of investigation and prosecution fall much short of expectation.

If at all any corrupt personnel are caught in public sector units than these are largely through the efforts of the Central Bureau of Investigation [CBI] that exercises parallel jurisdiction over Public Sector Units [PSU] under the Central government.

It is noteworthy that local police departments are not involved in investigation of crimes of corruption, cheating and frauds that occur in these PSUs. All such crimes are investigated by the Vigilance departments or by the CBI. The PSUs under the state government (like State Electricity Board, Transport Department, PWD etc.) are similarly covered by the State Vigilance Department or some special units in the Criminal Investigation Departments, both under the direct control of police headquarters.

The non-involvement of local police makes exposure of such cases very difficult for the complainants who need to go elsewhere to report about corruption. Such organizational distribution of responsibilities makes it difficult for corruption in the government units to be properly checked. If any citizen or honest public official has knowledge of such criminal activities he/she has to go through departmental bureaucracy to report these incidents. Since in majority of cases the senior officers themselves are involved or indifferent to the organizational malpractices this particular route is naturally fraught with charges of indiscipline and consequences for the upright officer. Trying to report the matter directly to the internal Vigilance section is also similarly mined since it is a part of headquarters where the same bureaucrats are involved.

The CBI is an independent external investigator but there are limitations to the number of cases that can be handled by it and in any case it is remote from the place where corruption may be going on. This leaves few avenues to the upright officer to combat corruption that is going all around him. No wonder poor Dubey attempted to go directly the PMO for he could see that the National Highway Authority officials were not interested in combating corruption within their organization.

On the one hand, overcoming the problem of police discretion at the FIR level is a difficult one. The officers at police stations will register criminal cases only when they are forced or bribed. On the other hand PSU managements have rarely exercised powers to combat corruption within their organization. Their politicization has made corruption ubiquitous within them. The government, more particularly the politicians and the entrenched bureaucrats benefit from the existing arrangements and have little desire to change the system. Accordingly, they have little interest in controlling corruption within the PSUs. The courts are notoriously slow and unlikely to be stirred in bringing efficiency to their functions. It is a testimony to the strength of Dubey that single handedly he attempted to combat these powerful forces.

Redeeming hope though lies with vigilant citizens who sometimes assert to bring some change. The outpouring of public indignance over Dubey’s murder has stirred many people to action. A group of IITians have joined together to pursue the police investigation and ensure that it is not diluted at behest of interested politicians. The media has been pursuing the story and keeping it in the limelight. Already, it has stirred the conscience of the nation and the case may become a test for Vajpayee government to display its sincerity of purpose. Lalloo Yadav too realized its significance and quickly handed the case to the CBI. This has helped in bringing the nodal agency at an early stage into the investigation when the trail is still not cold. Some breakthroughs have been made and witnesses to the murder have been found. The Supreme court too has taken cognizance of this case and is demanding full report from the concerned authorities.

The challenge before all the concerned citizens is to ensure that every crime of corruption is handled in a similar manner.