Choosing the High Court - Committee for Information and Initiative on Punjab (CIIP)

B. Choosing the High Court

Having made the decision to file a case, families spurned the lower courts and used the writ of habeas corpus to approach the High Court. They chose their lawyers based on advice from political leaders, human rights activists, and friends. Sometimes district court lawyers who had represented family members in false cases in the lower courts recommended a High Court lawyer. Afflicted families perceived that the corruption, police harassment, and delay in proceedings would make justice impossible in the lower courts. Many justices of the High Court seconded their opinions.[58]

Criminal cases in the lower courts follow a lengthy procedure involving three stages: pre-summoning, pre-charge, and the actual trial. Witnesses often have to testify three times. The petitioner has to be present at every date of the hearings, or the magistrate can dismiss the case against the accused.[59] In order to initiate proceedings, the plaintiff must first file the complaint with the magistrate.[60] Under Section 202 of the CCP, the magistrate can postpone proceedings until he, a police official, or other person designated by him investigates the complaint and examines the witnesses. Proceedings then commence under Chapter 16 of the Code. The magistrate issues a summons to the accused. If the police are also investigating the matter, the magistrate may stay the proceedings until the police have completed their investigation.[61] Next, the specific charge is formulated; this may involve recalling witnesses several times if any portion of the charge is changed.[62] Police officers often make several attempts to reduce the severity of the charges. Only then does the trial begin.

This procedure of the lower courts increased the chances that ultimately families would drain their financial resources and the police would win over witnesses by constant pressure. Police officials prolonged the procedure with delay tactics: often, the accused would claim he or she had to go away for a job assignment, files would be lost, and investigations would be protracted.[63]

Delay increased the opportunity for corruption. Brjinder S. Sodhi, a lawyer in the district courts of Patiala, claimed that police would go to the judges’ houses to obtain remand for someone who was detained, or to influ-ence them in a case. The judiciary of the lower courts depended on the po-

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lice for security guards, “so there’s a pro-police attitude.”[64] According to the report of the sessions judge in Hazura Singh v. Punjab, the district magistrate “admitted to not having obtained the signatures or thumb impression of Bagicha Singh in proof of his having been actually produced before her.”[65] This requirement is intended to ensure that detainees are produced before magistrates, who can evaluate the detainee for any sign of physical torture. Failure to procure such signatures often implies that the detainee is unwell or has been killed by the police.