Custodial deaths and related cases in India

This article is going to be a very brief overview of Custodial Deaths and we’ll see what recent developments we have with cases around the topic on deaths in custody.

What does “custody” mean?

The term custody means apprehending someone for protective care. The word custody and arrest are not synonymous. It is true that in every arrest there is custody but vice versa is not true. Actual seizure or touch of a person’s body with an intention of arresting is necessary if any detention has to be called an arrest. Arrest directly curtails the liberty of an individual and strikes down its freedom. But there is a proper method to follow while arresting an individual as laid down in Section 46 of Code of Criminal Procedure.

However, custody is a state of being guarded, or kept in prison, temporarily especially by police. It is a legal right or duty to take care of somebody/something. Custody may amount to arrest in certain cases but not in all cases.

In Criminal Law, custody is the second stage of arrest. As per Section 57 of crpc, a person so arrested by the police without the warrant should not be kept detained for more than 24 hours. And the person so detained as to be brought in front of the magistrate within 24 hours.

Numerous times it happens that when a person is arrested for a wrongdoing, the police may not be able to complete the examination within 24 hours and produce the detainee in front of the officer. In such cases, it becomes necessary to keep a person in the custody of police for the security of the general public and also that the detainee does not evade the law.

There are two types of custody:

1. Police custody
2. Judicial custody

Police custody means that police have physical custody of the person while in judicial custody the person is under the custody of the concerned magistrate.

In the police custody a person is kept in the police station lock up while in the latter the person is kept in jail.

As per Section 167 Code of Criminal Procedure, if the police is not able to complete the investigation within twenty-four hours, the in charge of the police station or the in charge of the investigation not below the rank of sub-inspector should transmit the entries in the diary relating to the case.

The magistrate if so believes that the accusation or information is well-founded then detainee may have reasonable ground to commit an offence, may order to keep such person in judicial or police custody as deemed fit. The magistrate may order police custody for fourteen  days. However, in no circumstances can a person be kept in police custody for more than 14 days. Beyond this if a person is required in the custody he has to be kept in judicial custody. (CBI vs Anupam J Kulkarni AIR 1992 SC 1768)

What is custodial death?

When a person dies in the custody is called custodial death. Deaths in custody are not uncommon.  They may be due to natural causes but they may also be the result of unlawful killing or the result of ill-treatment or inadequate conditions of detention. Custodial death can be the result of encounters on the basis of misplaced suspicion, police brutality for non-co-operation by the accused, or mere torture due to executive prowess and frustration.

The official narrative in cases of custodial deaths which the police controls, is readily turned to suicide, assault by fellow prisoners or natural causes. As per the data released by the National Crime Records Bureau, as many as 1,303 people have either died or disappeared while in judicial custody from 2005-2017.^[1] Also, according to the report of the Asian Centre for Human Rights (ACHR), “Torture in India 2011”,^[2] the National Human Rights Commission (NHRC) recorded a total of 14,231 deaths in custody in India between 2001 and 2010, which includes about 1,504 deaths in police custody and about 12,727 deaths in judicial custody. The ACHR report observes that these are only the cases reported to the NHRC, and do not include all cases of custodial deaths

Tamil Nadu custodial death

Jayaraj aged 59 and his son Fenix aged 31 were arrested on June 19, 2020, for allegedly violating the lockdown norms. The duo was picked up for questioning for keeping their mobile accessories shop open during the lockdown and were thrashed by the police personnel leading to death while in custody at Santhakulam Police Station, Tuticorin.

The duo had kept open their mobile accessories shop 15 minutes beyond the time limit prescribed on June 18, during the COVID 19 lockdown. Next day, the Police took Jayaraj into custody and his son was taken into custody too when he went looking for his father. The duo were booked under Section 188, Section 269, Section 353, 506(2) of IPC.

Section 188- Disobedience to public order duly promulgated by public servant,

Section 269- Negligent act likely to spread infection of disease dangerous to life.

Section 353- Use of force to deter public servant from duty.

Section 506(2)- Punishment for criminal intimidation.

Eyewitness to the Custodial Death incident has claimed that they were brutally beaten, and multiple changes of clothes were brought from their home to change the blood-soaked clothes. The witness also said that the father and son had been sodomized in the custody as they were bleeding profusely from the rectum. The Police Force denied the claims and said that the two had internal injuries only as they rolled on the ground and resisted the police arrest.

It is also claimed that the Magistrate B Saravanan gave the remand order without seeing the detainees in person. A Magistrate can make a remand order only when the detainees in front of the magistrate as per Rule 6 of the Criminal Rules of the Practice, 2019.

On June 22, the duo were shifted to the Government Hospital. Due to severe bleeding and several external and internal injuries from alleged lock up torture, Fennix died late evening on June 22^nd  and Jayaraj in the morning of June 23^rd. Later, a Jail Hospital Report revealed that the father son duo were exploited horrifying injury marks.

Aftermath of the incident:

The state government suspended the Inspector of Police Shreedhar and two other police personnel were suspended after the issue came to light. The Chief Minister said the probe into the investigation will be transferred to the Central Bureau of Investigation after consulting with the Madras High Court. Jayaraj- Fennix Custodial Deaths. Madras High Court Takes Contempt Against 3 Police Officers For Obstructing Inquiry By Magistrate

The Madras HC, Madurai Bench on 29/6/2020 initiated suo moto contempt proceedings against three police officers for obstructing the HC-ordered inquiry by Judicial Magistrate into the horrific custodial deaths of Jayaraj and Fennix in Sathankulam town in Tamil Nadu. 

The Court action was based on the report by the Judicial Magistrate, Kovilpatti against Thoothukudi ASP D Kumar, DySP C Prathapan and police constable Mahajan.

A bench comprising Justices P N Prakash and B Pugalendhi observed  “District Police administration are doing everything within their command to prevent the learned Magistrate from proceedings with enquiry”.

“The report shows that Mr D Kumar, Additional Superintendent of Police, Tuticorin and Mr C Prathapan, Deputy Superintendent of Police, Tuticorin made themselves available in the Sathankulam police station and in their very presence, the other police men were taking videos of the Magisterial proceedings. The policemen were not giving the records called for by the learned Magistrate and it is seen that one of them, viz, Mahajan, Police Constable, Sathankulam Police Station, had made a very disparaging remark in Tamil to the learned Magistrate”, the bench observed.

The Court said that the report of the Magistrate was sufficient to take cognizance of criminal contempt under Section 15(1) read with Section 2(c) of the Contempt of Courts Act, 1971 against the said officers.

It may be noted that the Magistrate is holding the inquiry as directed by the High Court on June 26 in a suo moto case taken with respect to the custodial deaths.

The HC also noted that a free and fair investigation is not possible unless the said officers and the officers of Sathankulam police station are transferred.

“We are of the view that unless the State Government intervenes immediately to transfer the Additional Superintendent of Police, Tuticorin, Deputy Superintendent of Police, Tuticorin and other policemen in Sathankulam, Police Station, it will be very difficult for a free and fair investigation and inquiry”.

The named officers have been asked to appear before the court in person. The HC on 29/6/2020 also directed the District Collector to depute revenue officials to preserve the materials related to the case, after the Magistrate complained of non-cooperation by the police. 

Wadala Custodial Death

Vijay Singh, 26 year old, resident of Antop Hill, Wadala had a clash with a couple, known to him and they called the police. Singh was accused of allegedly harassing the couple, by pointing his bike headlights towards them when they were seating at a public place. Singh was picked up at 11pm at night and was allegedly beaten inside the lockup, he complained of chest pain but was denied any medical aid and was made to sit on a bench for 2am. Later, he was released where he collapsed at the police station’s gate. He was then taken to Sion hospital where he was declared dead even before admission.

The couple and Vijay were then taken to the police station in the police vehicle. The two eye witness Shivam Singh and Ankit Mishra, Vijay’s friends followed the police vehicle. Even in front of the policemen the couple beat the three of them.

Aftermath of the incident:

Five cops including assistant police inspector Salim Khan and a sub inspector Sandeep Kadam, and three constables namely Bhabal, Chole, Choure of Wadala Police Terminal police station were suspended. The Police also booked the couple under various sections of IPC like culpable homicide not amounting to murder, misleading the police about the circumstances of the incident and destruction of evidence among other charges. The City crime branch is investigating the case of custodial death.

Custodial Death of Ghatkopar Blast suspect

Sayyed Khwaja Yunus, age 27 years, a software engineer, native of Parbahni was arrested by the Mumbai police in connection with a bomb blast at BEST bus at Ghatkopar in December 25, 2002. Yunus was booked under the Stringent Prevention of Terrorism Act. Due to Assistant Police Inspector Sachin Waze third degree “modern techniques” led to Yunu’s death. The Assistant Police Inspector punched him on stomach and poured ice cold water on him. He died on the spot.

Sachin Waze was accused of covering a custodial death and that of making a false plan that Yunus escaped their custody near Palmer, Ahmednagar when he was taken for further investigation at Parbhani.

Aftermath of the incident:

Investigation by state CID in 2003 revealed that the escape theory was false and the Sub Inspector Sachin Waze and police constables Rajendra Tiwari, Sunil Desai, Rajaram Nikam were found liable for the death of Yunus in police custody. They were suspended from their duty.

The four police personnel were later reinstated in June 2020, while they still face trial on charges of murder and destruction of evidence.

Sangli Custodial Deaths

In November 2017, one Mr. Aniket Kothale was caught for robbery and was later killed as a result of police torture and atrocities. In an attempt to hide the actions of custodial death, the police had tried to burn the mortal remains of the body, however, the same was found two days after his death. The police also made an attempt at justifying their actions by saying that the accused was trying to escape custody. However, statements from a co-accused who was present while the torture was being inflicted later informed that it was an intentional act by the police.

Aftermath of the Incident

A charge-sheet was filed against the 6 accused police officers and the Criminal Investigation Department (CID) was asked to look into the matter which sought permission for NARCO test on the accused. Even the DGP for the State of Maharashtra had received a notice by the NHRC demanding a detailed report on the particulars of the incident within 4 weeks of the notice. Subsequently, seven police officers were suspended as a result.

Guidelines for custodial deaths

Right after the aftermath of the Emergency, the All India Anna Dravida Munnetra Kazhagam government in Tamil Nadu submitted the Justice Ismail Commission Report to Parliament in 1978. The commission studied police brutality inside jails and found that ill-treatment began right from the moment the prisoners were brought in. However, only few of such cases, for example, the custodial death of Sarabjit Singh, managed to draw attention from the entire nation.

It was in response to a similar controversial encounter killing of the suspected members of the Naxalite Maoist group, the Peoples’ War Group (PWG) that the Andhra Pradesh Civil Liberties Committee (APCLC), a local NGO, documented instances of 100 encounter killings and brought the matter to the notice of the National Human Rights Commission (NHRC).  In furtherance of the same, the NHRC issued a series of guidelines that required all police stations to immediately record such deaths and hand over the investigation to an independent agency such as the CID if the persons concerned were from the same police station. As per the 1993 NHRC Guidelines on Custodial Deaths and Rapes, every instance of custodial death or rape must be reported by the respective State Government to the Commission within 24 hours of occurrence. This must be followed by a post-mortem report along with a videography report on the post mortem examination.

Four years thereafter, the Supreme Court in 1997, in the matter of Dilip Kumar Basu v. State of State of West Bengal^[2], laid down detailed guidelines to be followed by the police during arrest and the procedure thereafter. The guidelines specifically mention that every detainee has the right to be informed that he is under detention, the reason for the same, the right to approach a lawyer and the right to inform a family person etc. The said guidelines also mandate medical examination by a doctor every 48 hours during detention.

However, tardy implementation of the said guidelines led the legislature to finally incorporate an amendment in the Code of Criminal Procedure in 2006 by insertion of Section 176 (1A). It empowers the nearest Magistrate to hold inquest or an inquiry into the cause of death of any person while in custody of the police. While doing do, he has all powers which are vested in respect of inquiry into an offence.

Additionally, Section 29 of the Police Act, 1861 provides for a maximum punishment of three months of imprisonment, either with or without hard labour in case such officer is found guilty before a Magistrate for any violation of duty or wilful breach or neglect of any rule or regulation or lawful order made by competent authority. Police officers may also be convicted under Sections 330 and 331 of the Indian Penal Code, 1860 which provide for the offence of voluntarily causing hurt (section 330) and grievous hurt (section 331) with the object of extorting confession for a crime etc. The illustrations attached to these provisions further elaborate upon the same.

Though India is a signatory to the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment in 1997, however, it is yet to ratify it. The closest that we have to be obliging fulfilling our commitments made as a signatory is the enactment of the Protection of Human Rights Act, 1993, however even that does not consist of any substantive provisions that deal with the issue of custodial deaths.

A toothless Prevention of Torture Bill is pending before the Parliament since 2010, and there is very little hope that it will be passed within the tenure of this government. While there are jail manuals in many states, (besides the model jail manual) which state how prisoners are to be treated and what they are entitled to in prisons, there are absolutely no rules regarding the treatment of inmates in police custody and they remain totally at the mercy of the police.^[3] 

[2] D.K.Basu v. State of West Bengal, (1997) (1) SCC 416.

Conclusion

It should be understood that it is the Fundamental Right of every citizen to have a life which implies that in custody no person has the power to deprive a human of his life. Custodial deaths care perfect examples of “ Corruption of Absolute Powers or Misuse of Uniforms”. All we need is strict punishments to set an example.