Rukum Incident: Are Police Personnel Liable for Omission ?
Rukum Incident nyayapalika.com
Concept of Omission.
The cardinal principle of criminal jurisprudence suggests that actus reus (act) alone does not amount to guilt. It must be accompanied by mens rea (guilty mind) and both the elements need to be proved in order to suffice crime except in case of strict liability where actus reus alone is sufficient to prove crime. Generally, in order to constitute actus reus, there must be a voluntary act and a consequent result. However, omission is an exception to this general rule. Omission may be defined as an act in which a person refrains from doing something which he is bound to do it by law. But it appears to be confusing and question may arise that if every time we shall be liable for failing to prevent harm done to someone or something? Moral compulsion may arise to intervene to prevent crime, but does it give rise to criminal liability if we failed to do so? In order to erode the vagueness, there has been the prescription of certain situations in which person is criminally liable.Such legal duty may arise in some specific situations such as one arising by virtue of law, voluntary undertaking, agreement and special or blood relationships.That means passive observation per se, in absence of legal duty or just a mere moral obligation does not give criminal liability.
Rukum Incident and Police Role in Question.
On May 23rd2020, Nabaraj BK along with his 18 friends went to neighboring Soti village of Chaurjahari Municipality in West Rukum with an intention to tie the knot with a 17-year-old girl and locals allegedly chased them pelting stones and beating with woods as well as sickle. Nabaraj, along with his five friends, died and 12 others were injured.
It is also alleged that police personnel were witnessing the incident but refrained to intervene. If police are present during the incident then the question arises against police’s failure to intervene and if they are liable for the omission of legal duty.
The Preamble of Police Act 2012 suggest sthat the primary duty of the police is to prevent and investigate crime and maintain law and order in the society. Furthermore, Section 15 of Actmentions that the duty of every police employee shall be to prevent crimes, protect people from unnecessary harassment and to make every possible effort to save people from accidents or dangers. Section 6(1) of the Muluki Criminal Procedure Code 2074 states that if any police officer gets information that any offence set forth in Schedule 1 has been committed or is being committed or is likely to be committed, such officer or employee shall, as promptly as possible, make necessary and effective arrangements in order to prevent the offender from committing the offence.Likewise, Section 195 of the Code has a provision for departmental action against any government employee violating the procedural guideline prescribed by Muluki Criminal Procedure Code 2074.The law of the land does impose a duty on the police personnel to intervene to restore law and order, and to protect lives in danger. However, police personnel present in the incident site not doing their part to disperse the crowd or to protect the victims leads to that conclusion that the afore-mentioned legal provisions have been violated. The police officials are liable for not preventing the violence while they could do so or failing to take best possible measures to protect the victims.
Does it mean police are liable for the crimes i.e. homicide of those victims?
To answer the question,the United Kingdom superior court has theorized jurisprudence in relation to police omission resulting death of the victim. In the case of R vs Dythan, a police officer who did not take any action to prevent the incident even after noticing the scuffle outside a night club which resulted in death of the victim was convicted on the grounds of omission. The court observed that such deliberate and willful neglect has some degree of culpability, which is condemn able and punishable act because such omission endangers the public interests.In the case of R vs Naughton,an off-duty police officer from Birmingham, who did not intervene when one of his friends attacked a restaurant owner, was also convicted of misconduct in a public office. In both the cases, the defendant has been convicted of conduct crime and not of the resulting crime of manslaughter and battery respectively. In another instance, the Supreme Court of India also issued a 11-point directive for the adoption of preventive,remedial and punitive measures to make police liable if it is found that a police officer has failed to fulfil his legal duty, and that it be considered an act of deliberate negligence. The liability of the police officer charged with omission seems to be limited within the conduct crime (deliberate, willful negligence) and can’t be extended to result crime such as manslaughter because it seems difficult to prove that matter under the causation theory. Thus, it can be concluded that those police personnel present at the incident site in Rukum can be made liable for the conduct crime i.e. willful negligence if they are found guilty of not making all the possible efforts to prevent the incident.
A fundamental principle of law is that “Wrong should be remedied”. As Lord Dyson puts it, this is “a cornerstone of any system of justice. But many legal systems around the world seem to be very reluctant to make public officer liable under omission and it isn’t very clear whether they are liable for civil or criminal liability”. Nepalese legal system doesn’t seem to take into account the matter of liability of police officer in case of omission. The state may have a fear of institutional dysfunction within police department if police are made liable for omission because liability of negligence complicates the decision making of police officers while discharging their duty and this ultimately harms the society. Departmental action, as a remedial approach does exist pursuant to the Police Act 2012 in case of the failure to perform the duty, but the question is if the liability suffices.
Thus, the law and the legal system must strive to compensate the suffering caused to an individual due to police’s failure to prevent any crime that could be prevented. It also needs to be ensured whether police are civil or criminally liable. The police are a special legitimate force of the state and have the authority to use force to protect citizens. People, except in the situation of self-defense, always completely rely on police for their protection. Therefore, police have the utmost duty to protect people from harm. Hence, in order to ensure justice for Nabaraj BK and his friends, police officers present in the scene of the crime should be made accountable for failing to protect the victims using their available resources. Refraining from such duty has a liability. Thus, to strengthen trust in our justice system, police department’s failure to do their part must be brought within the ambit of law. The accountability of public officers is essential to control the arbitrariness and promote justice.
(Author Bibek Timsina & Tirtha Raj Bhattarai are L.L.M candidates at Kathmandu School of Law.)