Tag: custodial death

Who was Father Stan Swamy

The news headlines today are echoing with the death of Stan Lourduswamy aka father Stan Swamy, an accuse in the Bhima Koregaon violence who was jailed under the UAPA in the Elgar Parishad Case and died a custodial death on July 5, 2021 at the age of 84. Several people are stating his death to be an “institutional murder” and the fact that despite him suffering from Parkinson’s disease and being admitted in the hospital his bail plea on “medical grounds” was rejected, has irked the people world over. Even the Human Rights Commission of the UN has expressed anguish over Father Stan’s custodial death.

The opposition leaders have addressed a joint letter to the President Of India, urging him to investigate Father’s death. The blog will update you about the reason of his conviction.

What was the Elgar Parishad Case

On December 31, 2017 a conference named Elgar Parishad was held to commemorate the 200th anniversary of Bhima -Koregaon battle which was the battle won by Mahars for the first time against the “high caste” Marathas by siding with the Britishers in 1818, where nearly 35,000 caste people were gathered. On 1st January, in an inter caste violence a man was killed which led to the Dalit agitations being spread in the entire state. The organizers of the conference were arrested for spreading the violence further and their actions are being linked to the maoist activities.

Father Stan , a Jesuit priest and a tribal activist was arrested by the National Intelligence Agency under UNLAWFUL ACTIVITIES PREVENTION ACT(UAPA) due to his links with the Communist Party of India(a maoist party) which is claimed to have further aggressed the violence. However, it was reported that months after his arrest , the NIA was yet to file charges against him. Reports claimed him to be the frailest among all those who were arrested for the Bhima – Koregaon violence.

10 opposition leaders wrote a join letter to the President of India seeking investigation in what is claimed to be a framed “institutional murder”. The letter was signed by Congress President Sonia Gandhi, Former Prime Minister HD Deve Gowda , chief Ministers Mamta Banerjee, MK Stalin and Hemant Soren along with several left leaders. In May this year, Father was infected for covid-19 and the disease was not detected until his condition went a bit severe and he was transferred to Holy Family Hospital in Mumbai. He died due to cardiac arrest in the very same hospital at 1.29 pm on July 5.

It is reported that during Father Stan’s last appearance before the Bombay HC through video conferencing in Taloja jail, he said that he did not want any treatment but to die in his beloved Ranchi where he had spent a major period of his life advocating for the Tribal Rights. His last rites are to take place in a Bombay church tomorrow. His family in Tamil Nadu and his wide number of admirers will be participating in the mass through online means keeping in mind the covid-19 protocols. He is remembered fondly as one of those who inspired everyone with his strength and integrity despite his frail health.

Why custodial deaths often go unpunished

By Karina Sharma

There are strong legal frameworks that protect the rights of the accused in police custody. But there are roadblocks to holding erring policemen accountable at every step

The brutality of the killings of Jayaraj and Bennicks in the Sathankulam police station in Thoothukudi, Tamil Nadu, is of a piece with police high-handedness which thrives in a broken criminal justice system. The police, responsible for those in their custody, acted in criminal breach of their constitutional and statutory duty.

The murderous assault on the father-son duo took place despite a strong legal framework that protects the rights of an accused in custody. Examples are Article 21 and 22 of the Constitution of India, provisions of the Code of Criminal Procedure (CrPC) relating to procedures of arrest and investigation, provisions of the Evidence Act relating to admissibility of evidence, and Supreme Court (SC) judgments like DK Basu vs State of West Bengal and Anesh Kumar vs State of Bihar.

One important safeguard is the medical examination of the arrestees, detailing injury marks if any. The medical officer’s report on Jayaraj and Bennicks recorded their injuries merely as “abrasions,” even though accounts suggest that both were bleeding profusely while in custody.

Another critical safeguard is that the police have to produce arrestees in court within 24 hours of the arrest, for the magistrate to ensure their legal rights are not violated. 

The presence of a lawyer during arrest reduces the possibility of physical harm and violation of the legal rights of the arrestees. In the absence of any mechanism, this constitutional right is often denied. For example, when lawyers went to the Sathankulam police station to meet Jayaraj and Bennicks, they were not allowed access.

In 2018, the National Crime Records Bureau (NCRB)’s latest annual report recorded 70 deaths in police custody –12 were from Tamil Nadu, the second-highest after Gujarat, with 14 deaths.

The question is: Will the outrage and attention the Jayaraj and Bennicks case has garnered finally bring about accountability? Going by the past record, it seems unlikely. There are roadblocks at each stage from the filing of a First Information Report (FIR) against the police to their prosecution. In the Thoothukudi case, initially, two sub-inspectors, Balakrishnan and Raghu Ganesh, were suspended, and departmental proceedings initiated against them. This is the usual response in such cases, but things get complicated after this step.

As per Section 176 (1A) of CrPC, every case of custodial violence shall be investigated by a judicial magistrate. But the 2018 NCRB report shows that of the 70 cases of custodial death in the year, judicial enquiries were ordered in only 28. Charge-sheets were filed only against 13 police personnel –11 of them were from Gujarat, the state with the highest number of custodial deaths. In Tamil Nadu, no police personnel were arrested, let alone charge-sheeted.

In the Thoothukhudi killings, while an enquiry by the judicial magistrate has been initiated, the magistrate, in a letter to the Madras High Court, has alleged that the police is trying to intimidate them and destroy the evidence. This is a reflection of the impunity the police enjoys. Eventually, the Madras High Court had to intervene. As of now, the Crime Branch-Crime Investigation Department (CB-CID) of Tamil Nadu Police has taken over the case and the five policemen accused of torture have finally been arrested and sent to judicial custody. 

Furthermore, the absence of direct evidence in custodial death cases is another hurdle. The Supreme Court, in the State of MP vs Shyamsunder Trivedi judgment, observed that the police, bound by the “ties of brotherhood”, would prefer to remain silent rather than assist the court. To address this concern, the law commission recommended twice (in its 113th & 152nd report) the insertion of Section 114-B into the Indian Evidence Act 1972, which reverses the burden of proof. Which is, if there is evidence that the injury was caused during the custody, the court may presume that the police officer having custody of the person caused it. This recommendation has not yet been taken up by Parliament.

Another roadblock is that cases go on for a long time, and witnesses often turn hostile under pressure. Just last week, seven policemen from Hapur, Uttar Pradesh, were exonerated in the case of the custodial death of Pradeep Tomar. His minor son, who witnessed the torture, narrated how the police used electric shocks and stabbed him with screwdrivers. But the victim’s family eventually turned hostile, contradicting their claims in the FIR. Multiple law commission reports have recommended a victim protection legislation. In 2018, the SC, in fact, approved the Victim Protection Scheme in Mahendra Chawla v Union of India case. While the mechanism was long overdue, the effectiveness of its implementation remains uncertain, given that the scheme hinges on the threat assessment analysis formulated by the police.

To ensure accountability, all relevant agencies–the magistrate, the bar, and the medical practitioner–must follow their mandate scrupulously. They are collectively responsible for ensuring the constitutional rights of an arrestee, especially the right against torture. Their non-compliance in procedures coupled with complacency costs lives.

No Blank Cheque For Custodial Torture Or Custodial Death

Let me begin by first and foremost penning that the most unfortunate death of a father Jayaraj and son Benicks allegedly due to severe custodial torture in a police station near Thoothukudi at Kovilpatti sub jail in Tuticorin in Tamil Nadu has raised serious questions on the conduct of the police and has shocked the entire nation! They were arrested for a seemingly trivial reason of violating lockdown norms in Sattankulam town in Tamil Nadu. It must be mentioned here that at the Kovilpatti sub jail when a medical check-up was done on the father and son, it came to light that there were serious injuries.

                               What is most shameful and most hurting to note is that when the check up of the son and the father revealed serious injuries and the duo were in an extremely bad condition, they were sent to jail instead of hospital! How can this be justified under any circumstances? As a corollary what followed next ostensibly was that their condition further deteriorated and it was then that they were sent very late to Kovilpatti general hospital where son Bennicks died on June 22 and his father Jayaraj died on June 23! There can be no blank cheque ever for custodial torture and custodial deaths

                                     To be sure, it is most heartening to see that in the backdrop of the most horrifying custodial torture and death of a father and son as mentioned above, a writ petition has been filed as PIL just recently in the Supreme Court titled People’s Charioteer Organization & Another Vs Union Of  India & Others seeking elaborate guidelines from the top court to ensure prevention of custodial torture. This petition has been filed by People’s Charioteer Organization (PCO) through its Secretary, Legal Cell, Mr Devesh Saxena, Advocate who lamented that, “We failed to eliminate the colonial attitude of our police”. This is mainly because they are rarely ever held accountable and rarely punished most strictly! This petition has been drawn by another advocate – Shashwat Anand.

                                  To start with, it has been very rightly pointed out at the very outset in this petition that, “The murderous police assault, unending beatings and brutal torture which caused the death of two innocent traders, a father and a son, Jayaraj, aged 62 years and Bennix, aged 32 years, at Sathankulam Police Station, near Thoothukudi in Tamil Nadu, has brought the issue of custodial deaths to the limelight and it is an acute demonstration of a broken criminal justice system and failure to effectively uphold legal protection against police abuse. Accusations have been made against the police officers involved in two F.I.Rs filed on 24.06.2020, and thereafter news coverage regarding the incident gained traction. Due to huge outcry, 4 policemen, two sub inspectors and two constables working at the Sathankulam Police Station were suspended, and the Inspector In-charge was transferred.” 

                                  Furthermore, it has been also rightly pointed out that, “This incident, inter alia, has traumatized all those who respect the rule of law and personal liberty in the country and it underlines afresh the urgent need for institutional correctives within the policing system in this country and the acute need for India to enact a strong law to prohibit and prosecute cases of torture and custodial deaths, in fulfillment of its legal obligations, both national and international, to guarantee protection to right to life.”

                            It is quite baffling to see that till now there is no strong law that strongly prohibits custodial torture and custodial deaths and prescribes strongest punishment for those men in uniform who dare to indulge in custodial torture and custodial deaths under any circumstances! But certainly this does not mean that no law can ever be made now also just because in the past no attempt has been made in this direction! All that is needed is strong will to act in this direction and nothing else!

                                            Bluntly put: Let me now ask few troubling questions which keep tormenting my mind. Why should custodial torture and custodial death not be prohibited, prosecuted and punished most severely? Why is there no zero tolerance for custodial torture and custodial deaths? Why instead do we see that there is zero conviction rate for custodial deaths and considerable delay in proceedings as we see in the annual report of 2017-18 of NHRC which received 148 intimations of death in police custody and 1636 intimations concerning deaths in judicial custody? Why should men in uniform not be held strictly accountable and strictly punished?

                                     Also, it must be asked: When no law can ever under any circumstances sanction custodial torture then why are police given a blank cheque for custodial torture? Why are they not promptly arrested, held accountable and punished most severely so that no one can ever take law for granted? Why a criminal act perpetrated by a men in uniform not be sent behind bars and why those in uniform perpetrating custodial deaths be not sent to the gallows? Why men in uniform forget that uniform does not give them the unfettered right to indulge in mercilessly beating someone, then further torturing them and then not allowing them to be sent to hospital in time which ultimately ensures that they die while in custody?  

                                 It would be instructive for the police themselves to read some landmark judgments delivered by Supreme Court pertaining to this key issue. To start with, while explaining about the reason behind the poor rate of conviction, it is pointed out in State of M.P. v. Shyamsunder Trivedi 1995 4 SCC 262 that, “…rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available. Generally speaking, it would be police officials alone who can only explain the circumstance in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that police personnel prefer to remain silent and more often than not pervert the truth to save their colleagues.”

                                     Going ahead, why can’t the detailed guidelines that were laid down by the Supreme Court in Joginder Singh v. State of U.P. (1994) 4 SCC 260 and also in D.K. Basu v. State of West Bengal (1997) 1 SCC 416 be implemented in totality? We cannot be oblivious to what Justice AS Anand had famously stated in DK Basu’s case that, “Custodial torture is a naked violation of human dignity and degradation which destroys, to a large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilization takes a step backward – flag of humanity must on each such occasion fly half-mast.”

                             Interestingly enough, it is quite laudable that it is further very rightly and very commendably stated in this very DK Basu’s case that, “Custodial death is one of the worst crimes in a civilized society governed by Rule of Law. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? The answer, indeed, has to be an emphatic “No”.”

                                        It is quite unfortunate to see that till 2005 when amendments were carried out there were no provisions to deal with death, disappearance and rape in police custody. What is more unfortunate is that even after Section 176(1A) of the Code of Criminal Procedure which was inserted after the amendment of 2005, we see that the compliance  with this mandatory provision which stipulates that “in such cases, the Judicial Magistrate or the Metropolitan Magistrate, within whose local jurisdiction the offence has been committed shall hold an inquiry in addition to the inquiry or investigation held by the police”, is rare and a long standing issue which is yet to be addressed, as a result of which this provision has become redundant in nature. All these loopholes must be plugged right now!      

                                        Also, it is a no-brainer that the landmark directions issued by the Supreme Court on police reforms in Prakash Singh v. Union of India 2006 8 SCC 1 must be implemented in totality. The governments should implement the police reforms by separating the investigating wing from the law and order branch. It also directed to establish a complaints authority to look into the human rights violations including custodial deaths and abuse of authority by the police.

                                     Furthermore, in Prakash Kadam v. Ramprasad Vishwanath Gupta 2011 6 SCC 189, the Hon’ble Supreme Court has observed that, “Policemen are persons who are supposed to uphold the law. In our opinion, if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen, much harsher punishment should be given to them because they do an act totally contrary to their duties.”

                                           What’s more, the Apex Court then laments in Re Inhuman Conditions in 1382 Prisons v. State of Assam AIR 2016 SC 993 that, “There are several such cases – documented and undocumented – all over the country but in spite of repeated decisions delivered by this Court and perhaps every High Court there seems to be no let-up in custodial deaths. This is not a sad but a tragic state of affairs indicating the apparent disdain of the State to the life and liberty of individuals, particularly those in custody. The time to remedy the situation is long past, and yet, there seems to be no will and therefore no solution in sight.”

                                           Why can’t police be freed from political interference and political control? Why can’t police recruitment be made more strict and why can’t their service conditions be made further more strict? Why can’t the Supreme Court directives on police reforms in Prakash Singh case of 2006 be strictly implemented?

                                  Why can’t police be made to follow the instructions given in the landmark DK Basu’s case while arresting a person? Like, for instance: All officials must carry name tags and full identification, arrest memo must be prepared, containing all details regarding time and place of arrest, attested by one family member or respectable member of the locality. The location of arrest must be intimated to one family or next friend, details notified to the nearest legal aid organization and arrestee must be made known of each DK Basu right, all such compliances must be recorded in the police register, he must get periodical medical examination, inspection memo must be signed by arrestee also and all such information must be centralized in a central police control room.  Why can’t the archaic and colonial “The Police Act, 1861” be amended to meet the present circumstances? Why can’t the landmark recommendations of the Law Commission of India in its 152nd and 273rd report be implemented?

                                        No doubt, the 152nd report submitted in 1994 had rightly recommended insertion of a new provision – Section 154A in Cr PC to enable any person to approach a judicial authority on the failure of police to register FIR! Similarly, the 273rd report of Law Commission of India on implementation of UN Convention against Torture and other Cruel, Inhuman and Degrading Treatment or punishment through legislation strongly recommended that those policemen who indulge in torture can be punished with imprisonment which may extend to life. Here I personally feel that custodial killing must be punished with death as they cannot be justified under any circumstances! Or at least, death penalty also must be included for custodial killings apart from life term so that a strong and stern message goes out that custodial killings won’t be tolerated by a civilized society like India any longer!

                                   On a more serious note: Why can’t the police training be overhauled completely so that they are taught to be more humane, more responsive and more compassionate while dealing with people and human rights? Why can’t the landmark recommendations of the Malimath Committee on Reforms in Criminal Justice System be implemented? Why can’t the governments both at the Centre and in the States show more drive and determination to push through the necessary reforms as recommended by so many Committees and even Law Commission of India which have been just gathering dust till now?

                                               In conclusion, only a strong political will is needed to do the same! There is nothing that cannot be done provided there is adequate political will! Custodial torture undermines the rule of law and erodes the people’s faith in the system.

                                        In addition, it many times makes a common man pick up guns to avenge with what he/she feels has been done wrongly! To restore people’s faith many remedial steps have to be taken! They cannot be left in abeyance any longer now! The earlier the police reforms are carried into effect, the better it shall be for not just people but also for the police themselves!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

Justice for Jayraj and Fenix – The Need To Stop Custodial Deaths

More than 1,000 people of Sathankulam town in Tamil Nadu’s Thoothukudi district staged a dharna Tuesday after two persons were allegedly killed in police custody here. In a chilling case of police torture, a father and son died in a span of 10 hours, in judicial custody in Thoothukudi, a coastal town in south Tamil Nadu, allegedly after being subjected to third-degree tre­at­ment by the police. The incident triggered widespread political and societal outrage.

The deceased have been identified as Jayaraj (59) and his son Fenix Emmanuel (31).  Two sub-inspectors have been suspended. According to the protesters and other local residents, Jayaraj along with Fenix ran a mobile shop named APJ in the town. On Friday, he closed his shop around 8:15 pm. Personnel from the Sathankulam police station, who was on patrol duty, reportedly pulled him up for running the store beyond the permitted time, and an argument took place.

On Saturday evening, the police personnel visited the shop again and had an altercation with Jayaraj.  When Fenix intervened, both father and son were taken to the police station and booked under several sections of the IPC, including Section 188 (disobedience to order duly promulgated by public servant) and 353 (use of force to deter public servant from duty).

On Sunday, after a medical check-up, the duo was lodged in the Kovilpatti sub-jail. That evening, local residents alleged, Fenix complained of chest pain and Jayaraj had a high fever. Both were taken to the Kovilpatti government hospital, where Fenix died on Monday evening and Jayaraj succumbed to respiratory illness Tuesday morning.

Jayaraj’s wife Selvarani has lodged a complaint, alleging that police brutality led to the death of her husband and son. In her complaint letter to the district criminal court and Assistant Commissioner, she said the police brutally attacked her husband and son, used curse words, and threatened to kill them. She urged them to book the police officers responsible under section 302 of the IPC and suspend them from duty.Condemning the killing, all trader union bodies, various political outfits, activists, and the local public staged protests in various parts of the town. Kanniyakumari MP Vasanthakumar, former AIADMK MP Sasikala Pushpa, and other party functionaries participated in the protest. Their demands include the arrest and suspension of the police officers responsible for the incident, compensation of Rs 50 lakh to the family members of the deceased, a doctor from the protesters’ side to be allowed during the autopsy, and a government job to one member of the deceased’s family.

The series of violations in the case mock our procedures. Whenever there is a death in police custody, the concerned police officers are duty-bound to bring it to the notice of senior officers expeditiously.

In view of the perception that custodial deaths take place because of reckless incidents of arrest, amendments have been effected to the Criminal Procedure Code, stating arrests be made only in offences which attract punishment of more than seven years or in those offences where there is apprehension that the accused may commit similar offences or assist other accused to escape. As soon as the accused is arrested, he should be medically examined by competent government medical officers and necessary medical assistance should be provided as per the requirement. Information about the arrest should be communicated to his advocate and relatives/family members. Details of his arrest need to be conveyed to the police control room and displayed on the unit website. In addition, following directives from the Supreme Court, a State Police Complaints Authority has been formulated under the chairmanship of a retired High Court judge to look into grievances in this regard. All complaints about custodial death are also looked into minutely by NHRC and SHRC from time to time.

Even though all these directives are being underlined and well-published from time to time, it is a matter of concern why these are not implemented at the ground level. Once one gets a job in the police department and wears the police uniform, there is a misconception that this is a blanket approval to arrest anyone and obtain a confession by indulging in physical harassment. Several times, suspecting someone for petty theft or because of personal rivalry, complaints are registered by people of means, and this is followed by arrest and physical torture.

If the police officer does not do so, he is declared a good-for-nothing. Many a time, a police officer who indulges in beating a citizen in public and violates all norms is appreciated by people and he is considered a hero.  Kamte was working as officer-in-charge of detecting crimes in Sangli police station for the last three years, and had reportedly detected several offences using high handed tactics and was applauded by the public from time to time. This must-have led him to believe he is beyond any law.

NHRC, as well as SHRC, have clarified more than once that unless a person has gone to a police station to lodge a complaint, whether he is in the lock-up or outside, he would be treated as under arrest and it is the responsibility of the police officer in charge of the police station to take care of his health. The study of custodial deaths reveals that more than 65 per cent are attributed to suicide, about 25 per cent to mental shock and less than five per cent to police harassment. These are official statistics and they tell us that we need a whole range of steps – from safety measures to psychological inputs and an array of methods and systems to keep a check on these violations and create a culture of fair and proper investigations.

Acting with impunity

These incidents have brought into sharp focus the way Indian policemen torture and interrogate suspects in their custody leading to death in several cases. As a result, policemen all over the country have been severely criticised and condemned. Strictures passed against policemen from time to time by learned judges of various courts notwithstanding, the police continue to brazenly torture suspects in their custody.

The Central Bureau of Investigation too uses torture as a method of investigation. In September 2016, B.K. Bansal, Director General of Corporate Affairs, and his son Yogesh committed suicide. In their suicide note, the two men listed the names of officers who had tortured their family in connection with a case of disproportionate assets. Bansal’s wife and daughter too had committed suicide two months earlier. On the directions of the National Human Rights Commission, an inquiry was held by the CBI. Expectedly, the agency exonerated all the accused. Taking cognisance of the matter, the Central Vigilance Commission published a standard operating procedure laying down guidelines for interrogation of accused officials.

Custodial deaths have been on the increase in recent years. They increased by 9% from 92 in 2016 to 100 in 2017, according to the National Crime Records Bureau. Since policemen responsible for custodial deaths rarely get punished, they feel emboldened to continue using torture as the tool to get to the truth. In 2015, for instance, the police registered cases against fellow police officers in only 33 of the 97 custodial deaths.

A historic order

The Supreme Court delivered a historic order in 2006 on police reforms. It stated, among other things, that every State should have a Police Complaints Authority where any citizen can lodge a complaint against policemen for any act of misdemeanour. However, only a few states such as Kerala, Jharkhand, Haryana, Punjab and Maharashtra have implemented the order. Others have not taken the matter seriously.

Until exemplary punishment is meted out to policemen who are responsible for custodial deaths after proper judicial inquiry, not much can be expected to ameliorate the situation. Proper interrogation techniques coupled with the use of scientific methods to extract the truth from suspects can go a long way in reducing custodial deaths.

Therfore, It should be mandatory for every officer in charge of the unit to visit immediately all incidents of escape of prisoners or deaths in custody. If the unit in charge does not reach the spot of the incident promptly, she or he should be held accountable. Otherwise, such serious incidents would continue to recur. The time is now ripe for the Indian government to consider ratifying the international treaty against torture and declare her commitment to human dignity.