UP chief minister Yogi Adityanath has earned the moniker "Bulldozer Baba". (Photo Credit: PTI)

In the Saharanpur district of Uttar Pradesh, bulldozers demolished three steps of the house of an accused wanted in a rape case. While speaking to the media, the police officer-in-charge of the area justified the action by saying, "We want to convey to the accused, which come from an influential family that action will be taken if they remain absconding. The staircase of the house was broken. There is a huge impact of our action on the ground. Before leaving the spot, we announced in public that if anyone was found providing any kind of assistance to the accused, action would also be taken against them too."

Are law and order implementing authorities permitted to adopt practices that include bulldozing their houses while seeking an accused? The reply is a big No.

The law-enforcing agencies work within the framework of the Code of Criminal Procedure, 1973, and other allied laws. The demolition of the house of an absconding accused who is living jointly with family members, who are not accused in the case, is beyond the power of the police by any stretch of the imagination.

Sections 81, 82, 83 and 84 of the CRPC 1973, provide for the attachment and sale of the property of an accused person or witness whose presence is required by a Criminal Court as the last remedy for compelling his attendance. The procedure laid down must be strictly followed, otherwise, such attachment and subsequent sale will be liable to be set aside.

The proper forms for the proclamation, attachment etc, to be used in such proceedings are given in Schedule V of the CRPC. Under Section 82 of the CRPC, a court can publish a proclamation requiring the accused to appear if the warrant issued against him cannot be executed. According to Section 83 of the CRPC, after issuing such a proclamation, the court may order the attachment of the proclaimed offender's properties. Unless authorised by a court of law, a proclamation authorised under the Code does not have the force of law.

The application of investigating officer under Section 82 of the CRPC must be accompanied by an affidavit stating the reasons for the action. The Lucknow Bench of the Allahabad High Court had recently held that the investigating officer has to seek the help of a court for issuance of proceeding under Section 82 of the CRPC, and only under the orders of a court that any proclamation under Section 82 of the CRPC can be issued.

An absconder is a person who is hiding himself to evade the process of law, even if the hiding place is his own home.

If the proclaimed person does not appear within the time specified in the proclamation, the property under attachment remains “at the disposal of the Government”. It can be sold at once at the discretion of a court when it is liable to speedy decay and if the court considers that the sale would be for the benefit of the owner. But, otherwise, it cannot be sold until the expiration of six months from the attachment and until the disposal of claims of objectors (if any) by a Magistrate.

In conducting sales, the interest/share of the absconding person in the attached property which is to be sold should be clearly specified so as to avoid complications in the future. It has been held by a full bench of the Chief Court of Punjab that only the life interest of an absconder governed by the agricultural custom in ancestral immovable property can be sold under provisions of the Criminal Procedure Code.

If the absconder appears or is apprehended and brought before the Court and satisfies the Court (i) that he did not abscond or conceal himself for the purpose of evading execution of the warrant, and (ii) that he had no such notice of the proclamation as could enable him to attend within the specified time, he can get the property back or its net proceeds if it has been sold.

Section 299 of CRPC 1973 provides that whenever it is proved that an accused person has absconded and there is no immediate prospect of arresting him, any court competent to try or commit such person for trial for the offence complained or may, in his absence, examine the witnesses produced for the prosecution and record their depositions, and such depositions may, on the arrest of the accused person, be used in evidence against him.

Section 47 of the Code makes it lawful for the police to break and enter into the residence of any person in his search being an offender if it had reasonable belief that the person is hiding on the premises. Similarly, Section 80 of the Information Technology Act 2000 also provides such an analogous provision. A similar type of provision had been adopted under the Securities and Exchange Board of India (Procedure for Search and Seizure) Regulations, 2014.

After taking a bird’s eye view of relevant provisions of the CRPC, it is clear that to force an absconder to present himself before courts, the law provides for forcing an absconder to surrender before it only under the mechanism of the CRPC 1973. In the process, his house/properties can be seized and even sold by order of competent courts. Even if the property is sold, due to fear of decay or after the expiry of the period then too once the absconder presents himself before the court the proceeds of the sale are liable to be handed over to him/her.

There is no provision under the CRPC to demolish the house of an accused by the police of its own free will as is being done by the Uttar Pradesh Police. The legislature consciously had not provided any such unilateral powers to the police and kept it within the jurisdiction of courts under the CRPC. The legislature provided such balance as they were aware that any day the power can be misused by the police.

A senior police officer in Lucknow has denied that the Uttar Pradesh Police used bulldozers to demolish a portion of the accused person's house and promised to take action if it turns out to be true.

This policy of antiphrasis as euphemism or litotes by senior officers is actually a silent approval of what is happening at the ground level. Who will identify the junior officer who acted irresponsibly or under the clandestine sanction of his seniors?

No sanction on paper could be found. As seen often, the lower rank officer will remain hidden from the public and media gaze and later on will be placed in a better place or wherever.

The litotes suit most political establishments which want to remain immune from any scrutiny. They are using bureaucracy to maintain their image amongst their constituency.

It is clearly indicated that the police is not acting brazenly but under direction from the political establishment of the State. This fact can be deciphered from the election speeches and otherwise propaganda of Buldozer during and after the election. In a recent interaction with the media, UP chief minister Yogi Adityanath had said, “I have sent the bulldozers for repair. Once they start working again after March 10, all those who are hot-headed now will be silenced on their own."

Democracy has to work and flourish under the constitutional mechanism and the authority of the majority is limited by legal and institutional means so that the rights of individuals and minorities are respected. This is the form of democracy practised in Germany, Israel, Japan, the US, and other countries.

This framework is intended to assist interested persons in various nations in establishing or improving curricular programmes which foster an understanding of and support constitutional democracy. The outline must be adapted to fit the circumstances and the needs of individual political communities.

But if some extra-constitutional mechanism is allowed by the political establishment to override the law and to implement its desires to go beyond the law, then certainly something very serious is happening and the same must be taken serious note of. The thin line between democracy and despotism must be held in reserve with strong actions to control the bulldozer otherwise it will bulldoze democracy itself.

The author is a senior advocate in Allahabad High Court