- When a public servant fails to discharge public obligations and instead, engages in in certain wrongdoings which as a consequence, causes injuries to the person is referred as malfeasance. Example – A Municipal Authority appointed a new head – X. This manager, along with his other responsibilities, is required to sign contracts with 3rd parties for certain social welfare projects. A, an entrepreneur, approached X for a social welfare project contract which would benefit both the parties. However, X accepts to sign on the contract on the condition if A pays X a certain amount. Thus, the conduct of X in the capacity of a public servant, amounts to malfeasance.
- Similarly, in India, any wrongdoing by the public servant would amount to malfeasance. However, in India, malfeasance per se, has not been defined anywhere but there are certain legislations which provide for circumstances when a public servant abuses you using his authority.
- The 22nd Chapter of IPC prescribes a punishment of 2 years of imprisonment or a fine or even both for the offence of insult. This offence is a compoundable offence as per the Code of Criminal Procedure 1973. This means the offence of insult can be compounded by the person who has been insulted.
- Example – A, who is seeking help to file a complaint in the Police Station, asks B, who is an officer there. B, instead of helping him, insults him in front of everyone. Due to this, A goes to the court of law since B insulted him. Since insult is a compoundable offence, B can enter into a compromising agreement with A so that the charges against him are dropped.
- Similarly, Indian Penal Code also lays down provisions for circumstance when you are unlawfully being hit by another. In such a situation, the person who has hit you will again be liable for punishment for imprisonment for a term extendable to 3 months or a fine extendable to Rs.500 or even both.
- The Indian Penal Code also says that if a public servant is not acting in accordance with the way he is supposed to conduct himself or contrary to any direction of law with an intent to save the person from punishment, then such a person will be liable for punishment of imprisonment of 2 years or fine or even both.
- Also, if a public servant is making a report contrary to law in a judicial proceeding, he will be liable for punishment of imprisonment of term of 7 year or fine or both.
- As per Section 166 of Indian Penal Code, a public servant who disobeys law with an intent to cause injury to another is liable to be punished with a term of 1 year of imprisonment or fine or both. So if a public servant hits or insults you, this provision of IPC will be attracted.
- However, in Indian law, there is no provision which, in particular, makes a insult, assault or any wrongdoing by a public servant, as an offence. But there are a few guidelines and codes of conduct for every public servant which they are required to abide by.
- So, there are indeed a few provisions of law which address the current problem but do these provisions cover every aspect of the problem? Do they properly address the problem we face when hit or insulted by a public officer? No, these provisions do not sufficiently address the problem we face when a public servant hits or insults you. So what do we resort to?
What is the solution?
As
mentioned above, there are a few provisions which make the act of
hitting or insulting as an offence. So, the first step one must take is
reporting the act of the public servant to a nearby police station by
registering a FIR. By registering a FIR, the first step of a legal
proceeding gets initiated. Once the legal proceeding is initiated, the
due process of law is followed and the rule of law prevails. But the
problem does not lie in that ever long (sometimes never ending) judicial
process.
One must
understand that the very fact that you register a FIR makes you
susceptible to another similar situation. After all, the police officer
is also a public servant. In such a case, what one must do is register a
FIR against that police officer in a police station. But who would
accept that the police officer is
the one who has been charged with the offenses? What if the public
servant who is supposed to protect people from all the evils in the
society becomes that evil? What if no one accepts the complaint? In such
a case, you can go to the District Superintendent of Police who will
look into the matter and also order the registration of FIR.
However,
if both these avenues don’t turn out to be very effective to the
victim, then you can approach the nearest Judicial Magistrate or even
approach the National Human Rights Commission, or, if available in your
state, the State Human Rights Commission. As we can see, there are quite
a number of ways by which you can let the concerned authorities know
about your grievances.
What is Police Complaint Authority (PCA) and how does it work?
However,
if you have knocked all the above-mentioned doors and still nobody
answered, even then you must not give up! There is still one door left
to knock and those are the doors of Police Complaints Authority. In
2006, a landmark judgement passed by the Apex Court in the case of
Prakash Singh v. Union of India,
gave a directive to all the states to create Police Complaints Authority
in their respective states. This was done because there was a dire need
of preserving the rule of law in the functioning of the State. The
problem is that only 18 states have complied with this directive so far.
What’s worse is that only a few are aware of this golden door.
Since
this is a state subject, every state has its own Police Complaint
Authority Regulations. As per most of these PCA Regulations, following
are basic functions that most of the PCAs have in common:
- Receive complaints against Police Officers who have been alleged of the wrongdoings.
- Enquire into those allegations of misconduct.
- Receive and enquire into the complaints of non-registration of FIRs.
Conclusion
Now, are
we still to assume that there is no rule of law and that the ones with
power will keep oppressing the ones without that power? Constitution is
the supreme law of India and no one is above it. Rule of law stands as a
pillar of the Indian Constitution and it cannot be taken away. No
matter who you are, man or woman, poor or rich; the law will always be
above you. No one is above the law, not even the lawmakers or the
law-enforcers. Even if you are a policeman, you will be accountable
before the law.
So yes,
if a public servant breaks the law, that person will be punished for it,
just like everyone. There is no point of being apprehensive and holding
back if a public servant hits you or even verbally insults you. If he
has been rude, behaved inappropriately or did not do his duty the way he
should have, his can always be punished by his seniors
The
State must protect the interest of its subjects. No State can work in
seclusion. It must work with the people and for the people and only then
can the nation grow as a whole.
References
- Section 21 of Indian Penal Code, 1861.
- Section 504 of Indian Penal Code, 1861.
- Section 320 of Code of Criminal Procedure, 1973.
- Section 350 of Indian Penal Code, 1861
- Section 352 of Indian Penal Code, 1861.
- Section 217 of Indian Penal Code, 1861.
- Section 219 of Indian Penal Code, 1861.
- Writ Petition (civil) 310 of 1996.
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