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.

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