| Read Odhikar report on human rights violations in the Indo-Bangladesh border [http://www.ahrchk.net/ua/mainfile.php/2005/938/ ]
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ASIAN HUMAN RIGHTS COMMISSION – URGENT APPEAL PROGRAMME Urgent Appeal Case: AHRC-UAC-003-2008
9 January 2008 ISSUES: Extrajudicial killing; impunity; command responsibility; government inaction Dear friends, The Asian Human Rights Commission (AHRC) has received information regarding the case of Kalidas Ghosh, a 17-year-old boy who was killed by the Border Security Force (BSF) stationed at the Indo-Bangladesh border on 28 December 2007. The AHRC has been informed by Banglar Manabadhikar Suraksha Mancha (MASUM), a human rights organisation working in West Bengal that Kalidas was shot dead by a BSF officer in the school compound where the boy was studying. Kalidas was in his school uniform when he was shot at point-blank range. CASE DETAILS: Kalidas Ghosh was a student at the Angrail Bidyamandir High School in Angrail Dakshinpara village. The school is within the jurisdiction of Gaighata Police Station. On 28 December 2007, Kalidas went to the school to help decorating the school playground for the annual sports meet of the school. Kalidas was along with his friends. Later, Kalidas was playing along with his friends in the school playground. During the game the ball with which the children were playing went near the BSF outpost number 6 which was very close to the playground. When the children started looking for the ball near the BSF outpost, the officers present at the outpost chased them away. Out of fear, some children returned to the school compound, while Kalidas continued searching for the ball. Mr. Ram Dhan Rathore, a constable stationed at the outpost, chased Kalidas away. Soon Kalidas also returned to the school compound. However Ram, the BSF constable, came looking for the boy into the school compound. Seeing the officer, the children out of fear went in hiding. At this juncture the BSF officer spotted Kalidas and started firing at him. Couple of shots missed the boy, but finally one shot hit him, fatally injuring the boy. Kalidas was still wearing his school uniform while he was shot at. At about 7pm on the same day Mr. Shubhendu Ghosh, the Sub Divisional Officer and Mr. Subas Sen, the Sub Divisional Police Officer stationed at Bangaon visited the place of incident. Kalidas' body was sent for autopsy at the J. N. Dhar General Hospital, Bongaon on the same day. The next day the local people staged a protest against the incident. A complaint was lodged at the Gaighata Police Station on 28 December 2007 by the maternal uncle of Kalidas against the BSF officer. The complaint is registered as case number 454 under Section 302 of the Indian Penal Code, 1860 against the BSF officer, Mr. Ram. It is alleged that the BSF also have filed a complaint at the same police station against Kalidas, which is registered as case number 455 on the same day under Sections 186 [obstructing public servant in discharge of public functions], 353 [assault or criminal force to deter public servant from discharge of his duty] and 307 [attempt to murder] of the Penal Code. This case, it is alleged, was filed by the BSF in an attempt to justify the murder. To support the position of his subordinates the Inspector General of BSF - South Bengal Mr. S. N. Tiwari had refuted the charges leveled against the BSF constable, saying that Kalidas was seen moving with '…smugglers and became victim of circumstances'. Refuting this statement the local Member of the Legislative Assembly (MLA) Jyotipriya Mallick has demanded removal of all BSF officers involved in murdering the local people in the name of being smugglers. MASUM has reported that the BSF had approached the victim's family and has forced the family to accept some money. For this, an officer from the BSF Mr. Manoj Kumar along with the member of the local Gram Panchayat Mr. Subrata Sarkar, a local doctor Mr. Dulal Sarkar and a local person Mr. Samir Mazumdar had met the victim's family and handed over some money to the boy's family. It is feared that now that money has been paid the chances for the murderer officer to be brought to justice is very little. BACKGROUND INFORMATION: The AHRC in the recent past has reported several cases of murder committed by the officers of the BSF stationed at various parts of India, particularly from West Bengal state and from the Northeastern states of India, particularly Manipur. From West Bengal alone the AHRC has reported more than a dozen cases in the past two years where the officers serving with the BSF has allegedly involved in murder, rape or brutal torture of innocent civilians. (To see more, please visit the website of Urgent Appeals: www.ahrchk.net/ua) The BSF being a para-military unit in India is feared by the local administration as well as the local police. Along the Indo-Bangladesh border the BSF is stationed to prevent illegal cross-boundary trades and migration. However, the BSF making use of their relatively higher degree of impunity often breach operational mandates and commit murder and other atrocities against the local populace. The repeated incidents of violence committed by the BSF are also an indicator to the state of affairs of the criminal justice system in India. This case, as it is evident from the facts and circumstances, is one of cold-blooded murder committed by a BSF officer. The officer, not only entered the school premises without express authority of his commanding officer, but also shot at a student which eventually killed the student. No law in India prohibits the local police from investigating the case and filing a charge-sheet against the officer. If the law is to be followed, the local police have to register a case against the officer and if they find that a case is likely to made out write to the commanding officer of the unit to which the officer under investigation belong, asking for the custody of the officer. The commanding officer may at his discretion deliver the officer to the civil authorities or choose to detain him under his command until the investigation of the case is over and a charge-sheet filed in an appropriate court. But for all this the local police must carry out their job effectively and without any failure. From past experience, the AHRC is aware that the local police often are scared of the BSF and try to settle the matter or rather force the matter to be settled against the law and write off the case without proper investigation. It is also often a practice that the local police make use of such opportunities to bargain with the BSF, to facilitate the police officers also to involve in illegal activities, like cross-border smuggling as it is often reported from West Bengal state. The chances in this case too are that the local police will try to do a shoddy job. Even though this is a case of cold-blooded murder committed by an officer of the BSF, the officer while committing the crime was under the direct command of his commanding officer. In such circumstances the commanding officer also will have to share the responsibility of the acts committed by his subordinate officers, whether such an act was committed under his express permission or knowledge. This is because similar incidents of murder and other atrocities committed against innocent civilians by the BSF is too common in West Bengal, particularly from the region where this case is reported from. Under these circumstances, the commanding officer immediately responsible for the murderer officer in this case must have exercised adequate caution against his subordinate officers to not to indulge in such crimes. The most common strategy adopted by the BSF and other para-military and law enforcement units in India and in other countries in the region like Bangladesh, Nepal and Sri Lanka in cases where their officers are charged with crimes is to register a counter case against the victim and if possible the witnesses in the case. This is to 'soften' the prosecution from charge-sheeting the erring officer for a serious offense. Such false counter cases are used as a 'defense strategy' during prosecution. Yet another strategy is to rule out the possibility of a trial in a civilian court by evoking the often misused 'impunity clause' in the statute that legitimizes these armed units. For example, in India, any act committed by a para-military officer or a military officer during the legitimate course of engagement with an enemy, within or outside the boundary of the country, carries immunity from prosecution. This provision is misused by the armed units to avoid any prosecution for their ill deeds. Another strategy is to prevent the erring officer from being handed over to the civilian authorities on the pretext of internal court martial. The obvious defense by the armed unit will be that since the erring officer has faced disciplinary proceedings under the court-martial, the officer's right against double jeopardy will be breached if the officer is handed over to a civilian court for additional prosecution. Since in many cases the victims involved are poor peasants or farmers, the cases against the para-military units are often not taken up in appropriate courts for proper prosecution. Even if a case is charge-sheeted and finally brought to the court, the officer escapes liability since no witness would appear in the court and testify. This exposes the absence of a witness protection mechanism in India. SUGGESTED ACTION: In these circumstances the AHRC request you to intervene in this case, and to write to the authorities named below, urging them to take immediate actions against Mr. Ram Dhan Rathore serving with Battalion 126 – E Company of the BSF stationed at BSF outpost number 6 at Angrail Dakshinpara village, North 24 Parganas district, West Bengal. The AHRC is also writing to the UN Special Rapporteur on extrajudicial and arbitrary execution calling for an intervention in this case. |
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