Justice Ganguly case: Why the police hasn't filed an FIR

The Delhi Police’s reluctance to proceed against allegations of sexual harassment by a law intern against retired Supreme Court Judge AK Ganguly stands in stark contrast to the Goa Police’s hot pursuit of Tehelka founder Tarun Tejpal accused of sexually assaulting a journalist. [caption id=“attachment_1325187” align=“alignleft” width=“380”]  Justice (Retd) AK Ganguly. PTI[/caption] While Tejpal was charged by the Goa Police of rape and has remained in custody more than a month after he was arrested, Justice Ganguly, who this evening stepped down as chairman of the West Bengal Human Rights Commission, faces no threat of such actions by the Delhi Police. The Police Commissioner BS Bassi when asked by the media on Friday (3 January) at the 2013 Delhi Police Annual Review why no FIR had so far been filed against Justice Ganguly, responded by citing a legal technicality. “I will ask you read Section 154 CrPc. As long those conditions are met, I cannot proceed,” Bassi told reporters. Section 154 Criminal Procedure Code which deals with the information in cognisable cases reads “Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it…” (emphasis added). In other words, crucial to such an investigation is the willingness and consent of the informant (in this case the law intern) to initiate police investigation, a path she has from the start made explicitly clear (through her blog article) that she wasn’t interested in going down. In the Tehelka case, however, the victim had made clear her willingness to cooperate with the criminal investigation and went on to record her statement before the police and a magistrate. Drawing another distinction between the Tejpal case and Justice Ganguly case, legal experts say the offences alleged in the two cases are very different. “Offences committed in the Tehelka case are extremely different from that in this case. Under the sexual harassment law, there is a remedy available other than criminal prosecution,” says Supreme Court advocate Vrinda Grover, underlining the point that there are many legally valid alternatives to the FIR route available to the law intern. In Tejpal’s case, he has been charged with rape. Asked whether there had been any change in the law intern’s stand on the issue of registering a criminal complaint, Grover said, “She will let us know when the time comes… If she wants to file an FIR she will let us and the police know. At the moment I don’t think anything like that has happened.” Women’s rights activists also feel that without the participation of the complainant a criminal investigation by the police will be extremely limited in what it can achieve. Says Kavita Krishnan, national secretary, All India Progressive Women’s Association, “Be it in the Tejpal case or any other case, the police can start criminal proceedings but they cannot go very far if the girl is not willing to make a statement under Section 164 of the CrPC (that is, record the complainant’s statement before a magistrate). Without the Section 164 statement, the case won’t proceed. The willingness of the complainant is absolutely crucial here.”