Person escapes being accused due to police tampering of 161


Facts :

In Nov 2013, my minor son was beaten by his school teacher in the presence of the school principal. Despite my son's repeated cries for help, the school principal stood like a mute spectator and enjoyed the show while the teacher continued to mercilessly beat my son.

FIR was filed same day by me. Despite my relating what is stated in above paragraph, the police only mentioned one sentence in the FIR stating that "this incident took place in the presence of the school principal". When I objected to this, another police officer past filed me saying that this one sentence was enough to implicate the school principal and FIR doesn't have to be a long and detailed explanation of the incident. Police statement of my victim son was not recorded. Neither did police record any statement of my wife or elder son.

After filing FIR, I talked with eye witness students on phone to know what happened. Every student corroborated that despite incident having taken place in presence of school principal, the school principal kept standing like a mute spectator as a result of which the teacher continued to beat my son. These telephone calls were audio recorded by me. 

Same evening, the police recorded statements u/s 161 of Cr.P.C. of three eye-witness students wherein, amongst other details, they stated that the school principal simply stood like a mute spectator and allowed the beating to continue.

Police only arrest the teacher and school principal escapes being charged for any offence although he is liable u/s 23 of Juvenile Justice Act, 2000 for having neglected a child who was under his care and control while in school.

Thereafter, in Dec 2013, police calls me one day to see the police papers before they file charge-sheet in Court stating that they were being shown to us before they file them along with chargesheet in court only because DCP (whom we had met earlier to air our grievance of police not having charged the school principal) had specifically instructed them to do so. The police papers are read out aloud by the I/O to us. This entire meeting too, is audio recorded by me. Amongst the police papers, we notice police statements of my victim son, my wife and my elder son which had, in reality, never been recorded. On confronting the police on these statements, police clarified that these were written out by them of their own accord as per the common police practice of drawing them out based on facts forthcoming in the FIR.

Police thereafter filed the charge sheet in court in Jan2014.

I procure copies of these police papers and charge sheet from court in Feb2014 and on perusal and comparison with my Dec'13 audio recording, realised that the "original" witness statements recorded under Sec. 161 of Cr.P.C. by police that were read out aloud to us in Dec 2013 had been replaced with falsified statements wherein the presence of school principal at the time of assault was removed by stating that he was taking a round in the school campus and rushed to the crime scene only on hearing some commotion and when he reached only verbal argument was going on ! Such police tampering was done to save the school principal from being arraigned as a co-accused. 

Hence, in conclusion, the entire charge sheet was standing on falsified police statements under section 161 of Cr.P.C.

Further, perusal of the charge sheet reveals that the school principal is neither shown as an accused under Col. 2 nor as a witness in Col. 4. Police has also not filed a report under Sec. 169 of Cr.P.C. to justify why they have not chargesheeted the school principal.

Although I immediately informed my lawyer about this police tampering, he failed to bring such police tampering by the I/O to the notice of the Court which was evidenced by my audio recording. On smelling something fishy about his inaction, I changed my lawyer and after 18 months, in Jun'15 I moved an  application demanding a Further Investigation under sub section 8 of Sec  173 of Cr.P.C. was filed by me in Jun 2015 through another lawyer which was allowed by the Court. A Pen-Drive containing the electronic evidence exposing the police tampering was seized from me by the police while recording my statement under further investigation and sent to FSL with a superficial questionnaire.

Police then conduct a biased and shoddy Further Investigation and file their a report in Apr 2016 without confronting the I/O or the witnesses with the audio recordings to investigate into our primary allegation of police tampering as they obviously wanted to save their own officials of this serious offence. And the Court, instead of rejecting such a shoddy Report, accepted it. Despite telling my lawyer to draw the attention of the Judge about failure of police to investigate into our allegation of police tampering despite the Court having specifically directed it to do so, he didn't draw the Judge's attention to this. Smelling something fishy, I hired a new lawyer (third one) and filed a Writ Petition in High Court voicing my grievance wherein, orders are passed giving me liberty to agitate collection of voice samples and 65-B certificate.

I filed copy of High Court Order and made application for collection of voice samples in Trial Court. And, without passing any order on my application, Trial Court committed the case to the City Civil & Sessions Court stating that as per some State Govt. notification, offence against children are to be dealt with by the specially designated Children's Court.

After committal of the case to the City Civil & Sessions Court in Jan 2017, the Court was vacant for 18 months. Thereafter, when a judge was finally appointed, after adjournments for 6 months, the Sessions Judge advised us to file a fresh application on similar lines stating that he could not pass an order against an application that was not filed in his court. So, a fresh application on similar lines was filed in Dec 2018 demanding collection of voice samples as our entire case of exoneration of school principal was based on electronic evidence which evidenced police tampering. The Sessions Judge then passed orders in Jan 2019 expressing his inability to order collection of voice samples as it would amount to Further Investigation which he is debarred from doing in light of a 2017 SC judgement of Amratbhai Patel and permitted us to approach High Court again. Judge however, directed me to file 65-B certificate.

Sec 65-B certificate was promptly filed by me in Jan 2019.

Thereafter, I have filed second Writ in High Court again, praying for collection of voice samples (which incidentally was permitted by High Court in our earlier Writ). This application is presently pending.

Further, we have also filed two separate applications in Sessions Court - one under section 91 for preservation of CDRs and second under section 193 (both are pending at present) to summon the school principal (placing reliance on Dharampal's case) stating that this was the right stage to move such application (before Sessions Court takes cognisance and frames charges) for issuance of summons in light of perusal of the investigation papers wherein, in addition to the lacuna observed in the charge-sheet (as stated above), in one of the witness statement under sec. 161, it had been stated that teacher continued to assault my son even after the school principal rushed to the basketball court (place of offence) on hearing some noises. Although the Police placed falsified statements of all witnesses, in one of such falsified witness statements, the above facts remained (probably due to police's oversight). Now, Sessions Judge is sitting on both these applications waiting for the order of High Court.

Now, my queries are :
(1) Does police tampering give rise to a separate cause of action for filing another FIR or have I rightly agitated this issue within this criminal proceeding ?
(2) If such police tampering gives rise to a separate cause of action, should I file a complaint to the Court or file another FIR ?
(3) If filing a separate complaint to Court is suggested, then, would I be required to obtain prior permission from the State Govt. as it involves a crime by a public servant in the course of discharging his official duties ?
(4) If I file either a complaint to the Court or a FIR today against this criminal act of police tampering which came within my knowledge in Dec'13, will I be hit by any limitations ?
(5) As I have already brought this act of police tampering to the notice of the Court in Jun'15 through my application demanding Further Investigation, when would be the right stage of telling the Sessions Court to appreciate the electronic evidence that exposes the police tampering (which was done by the police only to save the school principal from being arraigned as an accused) ? 
(6) If involvement of a person as an accused is apparent from police investigation papers the Court has full powers to issue summons under Sec 193. And if summons are in fact issued by the Sessions Court upon the school principal, then the school principal is surely going to move the High Court to quash the summons. If school principal moves High Court to quash the summons, is it at this stage that we can give evidence of police tampering to High Court or will we have to wait till the stage of 319 Cr.P.C. is reached after commencement of trial ?
(7) Is providing a Mirror Image of original device (mobile phone used for audio recording) that is made by an accredited cyber institution acceptable to FSL in place of original device for sending to FSL? This question is being specifically asked as the school principal is highly influential and I apprehend that evidence on my original device (if tendered to FSL) might get tampered to render my evidence as not being admissible.

 
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Firdaus Lalkaka: I must salute your courage and determination, but sorry to say that it is very difficult to fight with the police, the influentials and the politicians in India. If you have a strong memory then recall the case of s school in Haryana, where a poor man was arrested and also a case of MLA in Unnao (U.P).
 
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I'd appreciate if you can answer my queries. I'm aware that fighting against the high and mighty is an uphill task.

 
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I have no answer, that's why I tried to be bit phylosophical. Sorry.
 
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