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Custodial Crimes

Custodial Crimes

Can courts take suo motu cognizance of matters and initiate hearing?

Yes, ostensibly.

Not long ago, during a suo motu hearing of a public interest matter, a High Court Bench maintained that it “is not required to wait necessarily for a person to come before it to ring the bell of justice. The Courts are meant to impart justice and no court can shut its eyes if a public unjust is happening just before it”.

More recently, a Madurai Bench of the Madras High Court took suo motu cognisance to action an alleged custodial death of a father-son duo aged 59 and 31 years respectively, reported in Tamil Nadu’s Sattankulam Taluk of Thoothukkudi District on 22 and 23 June.

What is disconcerting is the brazen impunity with which the local police acted in Sattankulam, situated in the south-eastern corner of Tamil Nadu with a total population of 65694 persons including 34235 females spread over an area of 290 Sq KM in 24 villages, having about 17463 households (as per Census 2011).

No sooner than the news of the brutal incident broke out, it had sparked nationwide outrage and condemnation. Initially, family members of the deceased who were dismayed after their efforts to release the father and son from the clutches of the local police failed, displayed unwillingness to receive their mortal remains. Later they agreed on the persuasion of the Judicial Magistrate that justice will be done to them and the funeral got over peacefully.

On 24 June, the Madurai Bench of the Madras High Court began suo motu monitoring the case and the very next day it sought a report from the police. On 26 June, the police in its report submitted that a FIR was registered against Jeyaraj (59) and his son Bennix (31), who owned a mobile shop, on charges of violating COVID-19 curfew restrictions apart from deterring a public servant from discharging his duties under the following Sections of the Indian Penal Code, viz, (i) 188 - Disobedience to order duly promulgated by public servant, (ii) 269 - Negligent act likely to spread infection of disease dangerous to life, (iii) 294 - Obscene acts and songs, (iv) 353 - Assault or criminal force to deter public servant from discharge of his duty and (v) 506 - Punishment for criminal intimidation. Further, it was stated that when the beat police asked them to close the shop, they abused, prevented the police constables from discharging the official duty and threatened them with dire consequences. Both the accused were arrested at 23:30 hrs on 19 June, produced before the duty doctor Government Hospital for medical examination, then before the local Judicial Magistrate and remanded to judicial custody at Sub Jail, Kovilpatti at 14.30 hrs on 20 June. Two days later, at 23:00 hrs on 22 June, according to the Jail Superintendent, Bennix who was admitted to the Government Hospital, Kovilpatti by the Jail authorities at 19:45 hrs on 22 June expired at 21:00 hrs while he was undergoing treatment. Further, on 23 June at 06:45 hrs, the Jail Superintendent had recorded that Jeyaraj too expired on 23 June at 05:40 hrs while undergoing treatment.

Thanks to the effective monitoring by the Court, the Crime Branch of the State Criminal Investigation Department got into action. The turning point for the probe was soon reached after a brave Head Constable, who witnessed the brutal torture of Jeyaraj and Bennix in the police station provided important clues. The five policemen, including Inspector Sridhar, Sub Inspectors Ragu Ganesh and Balakrishnan, Head constables Murugan and Muthuraj said to have been responsible for the alleged custodial death have since been nabbed and booked for murder, tampering with evidence and wrongful confinement. The policewoman has been provided police protection besides granted one month leave without loss of pay.

On 2 July, when the Madurai bench of Madras High Court took stock of the situation, while observing that the State cannot afford to lose any more people to violence like Jeyaraj and Bennix has directed the State government to continue its ‘police wellbeing programme’, launched in 2018 to give psychological counselling to police personnel and their family members, for at least the next five years and ensure there is sufficient funds for it.

The case of a 26-year-old scrap dealer’s alleged custodial death in Kerala during 2005 took its own time but when a Special CBI Court in Thiruvananthapuram, sentenced to death, two serving Police Officers, a few years ago, it raised several eyebrows. The Court observed that Police personnel were 'duty-bound' to protect life and property of citizen and if they venture in crimes, the safety of the public would be in jeopardy”. The victim, according to the prosecution was tortured by the policemen to make him confess that Rs 4000 which was found in his pocket was stolen money. It was the money that he had saved to buy his mother a new saree for Onam fell to deaf ears. He was reportedly tied to a bench and an iron rod was rolled on his thighs. Late that night, on 27 September 2005, the police took him to hospital where he was declared brought dead. The post mortem revealed that there were 22 injuries and ruptured vessels in the thighs and concluded that these ruptures were the cause of death. The victim’s mother a poor widow who depended on the meagre earnings of her deceased son decided to fight for justice. In 2016, the High Court of Kerala ordered the state government to give her Rs 10 lakh as compensation.

Lamenting on custodial death and torture, as early as 1997 the Supreme Court of India in DK Basu Vs State of West Bengal and Others gave a slew of directions with respect to rights/custodial torture. (1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police wheret the next friend or relative of the arrestee lives outside the district or town through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. (8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the  illaqa Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.

While deciding another case, the Apex Court, dismissing an argument that there were no witnesses to an alleged custodial torture, maintained that “in our opinion in a police station it is hardly possible for there to be any witness there except the policemen and the victim. A police station is not a public road or public place where people can see what is going on”.

There have been several debates over Article 21 of the Indian Constitution which is the sole repository of rights to life and liberty - "No person shall be deprived of his life or personal liberty except according to procedure established by law."  Notably, in Additional District Magistrate, Jabalpur versus Shivakant Shukla, the Supreme Court had observed on 28 April 1976 that the right to life and personal liberty is the most precious right of human beings in civilised societies governed by the rule of law. Even in the absence of Article 21 in the Constitution, the State has got no power to deprive a person of his life or liberty without the authority of law. This is the essential postulate and basic assumption of the rule of law and not of men in all civilised nations. Without such sanctity of life and liberty, the distinction between a lawless society and one governed by laws would cease to have any meaning. The principle that no one shall be deprived of his life or liberty without the authority of law is rooted in the consideration that life and liberty are priceless possessions which cannot be made the plaything of individual whim and caprice and that any act which has the effect of tampering with life and liberty must receive sustenance from and sanction of the laws of the land. Article 21 incorporates an essential aspect of that principle and makes it part of the fundamental rights guaranteed in Part III of the Constitution.

Former law minister Ashwani Kumar has been pushing for a stand-alone law to punish the police for custodial torture.  The Prevention of Torture Bill, 2010, was passed in the Lok Sabha under the UPA regime but it failed to get through Rajya Sabha.

A few black sheep in the police force seem to put the entire force in bad light before the public. It needs to be appreciated that policing is one of the most stressful jobs across the globe and India is no exception. A recent study by health experts from the Department of Psychiatric Social Work, National Institute of Mental Health and Neuro Sciences, Bengaluru and the Department of Psychiatry, Government Medical College, Calicut, found that the law enforcement occupation has some peculiar characteristics that can cause work stressors. Notably, the reasons for stress among others included negative working environment, long duration of working hours, lack or lesser time for family, irregular or improper eating habits, need to take tough decisions quickly, sleepless nights, poor living/working conditions, issues with seniors, inadequate time for leisure activities, difficulties in personal life etc. Operational and organisational stress, which was higher among lower level officials, has been attributed to their direct dealing with the public, and involved in crime investigation and law and order maintenance. It was also seen that operational stress was more in female police personnel when compared to their male counterparts which may be due to the multiple roles they are expected to perform. Although alcohol and tobacco consumption are considered as key unhealthy behaviours leading to hypertension apart from wide implications for fitness and work performances, in so far as mental health issues was concerned, 29% of the police personnel surveyed had substance abuse.

There have been several committees and commissions in the past which have provided a wealth of inputs on the need for police reforms. It is high time that such recommendations are considered apart from structural changes and gender specific stress reduction programmes are implemented in letter and spirit.

It was just a couple of months back that our National Security Advisor and seasoned ex-police officer Ajit Doval rightly said while addressing young police officers that if police fail to enforce laws then democracy fails. To quote him, "Law making is the most sacrosanct job in democracy… Law is as good as it is executed on the ground." Hopefully, the ongoing judicial intervention in the Sattankulam incident will beget good results for the men in uniform and the public at large.

(Published on 06th July 2020, Volume XXXII, Issue 28)