CUSTODY ; AN INSTRUMENT OF AUTHORITY
Updated: Jul 17, 2020
A balanced insight into the surveillance and actions of the watchmen, and the judicious use of custody, as a vessel of authority, is looked into through tracing the history, recent events and its comprehensive connotation in today's era.
"Quis custodiet ipsos custodes" (Who watches the watchmen) - A Latin Proverb
An Antiquity of Cases
Earlier last year, a Delhi court sentenced five U.P. policemen to 10 years of rigorous imprisonment for torturing a man to death in custody in 2006. The five policeman had abducted the victim on suspicion of his involvement in a car robbery and tortured him in custody. Later, after he died, they manipulated records to obliterate all evidence of custodial death and closed it as a case of suicide. The case was transferred from a court in Gautam Buddh Nagar to Delhi by the Supreme Court on the grounds that a fair trial would not be possible within the State.
Pronouncing the verdict, the additional sessions judge Sanjeev Kumar Malhotra said, “The police play a major role in the administration of criminal justice. One of the reasons for custodial death is that the police feel that they have a power to manipulate evidence as the investigation is their prerogative and with such manipulated evidence, they can bury the truth.” He added, “They are confident that they will not be held accountable even if the victim dies in custody and even if the truth is revealed.”
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.
Suman Behera, a mere 32-year-old was taken into custody, on the 1st of December, 1987 at 8 am, and found dead on the tracks of Jeraikela, railway station near the police outpost, where he was run off by a train and had sustained several fatal injuries. To achieve the redressal of the same by his family. The defence of the police union, was that in the night of, 1st December he went missing.
But alas, under the enquiry of Section 176 CrPC, and the violation of Article 21, and application of Article 32. After six long years, his mother received justice, and a redressal of 1,75,000 Rupees.
A Statistical Overview
Cases such as these highlight the alleged insensitivity of the police towards citizens. These incidents have provoked the public to such an extent that they have started castigating the police, so much so, that the institution for our protection, seems like the institution of our imperilment. One can possibly argue that though there are cases of police brutality, police remain our best shot against those citizens, who perpetrate violence and endanger our rights. Also, there may be several situations where the police brutality seems right to many, especially in cases of terrorism, rape or cases of national interest where the “the alleged is surely the culprit” in the eyes of the people but lack of evidence acts as an impediment in conviction. This seems to be the prevailing mindset among many, possibly justifying the abysmally low conviction rate of police officers in custodial deaths. According to the official figures tabled by the Union Ministry of Home Affairs in Parliament, in 2017, at least 100 persons died in police custody. Not one police officer has been convicted so far for any of the deaths.
Between 2008 and 2016, there were more than 300 deaths due to torture in police custody. Again, zero conviction. Not only that, between 2001 and 2018, a total of 1,727 people died in police custody. But only 26 officers have been convicted so far. Several Bollywood movies glorify police brutality and custodial deaths in such cases, however it is important to understand that even in such cases, the police does not violate the rights of arrested. Because the judgement of who is right or wrong invites arbitrariness which violates the rule of law and right to a fair trial. If lack of evidence sets a “supposed guilty person” free, it is a flaw of the legal system which should be addressed separately. A person always sets a bad precedent by taking law in their own hands, even if they do so for good.
However, it is important to know that the police is not unregulated in any manner. There are several legal mechanisms in place to ensure oversight of police conduct. First, the establishment of independent police oversight boards in accordance with Prakash Singh v. Union of India judgment of Supreme Court of India. Second, judicial remedy in the form of cause of action against police officers for violation of constitutional rights as a means of enhancing police accountability i.e. exploring the judicially enforceable forms of accountability that flow from existing criminal laws, public laws, and private laws. Third, the National and State Human Rights Commission (NHRC/SHRC) as a remedy for police misconduct.
P.P. Unnikrishnan v. Puttiyottil Alikutty is a case where two police officers were accused of having kept a complainant illegally in lock-up for several days and torturing him. The division bench of the Supreme Court had to deal with a defence raised by the police officers under Section 64 of the Kerala Police Act wherein there are procedural safeguards against initiation of legal proceedings against police officers acting in good faith in pursuance of any duty imposed or authority conferred by the State. The Supreme Court considered this provision to be based on the rationale of Section 197 of the CrPC. Therefore, the Supreme Court discussing the scope of Section 197(1) held that “There must be a reasonable connection between the act and the discharge of official duty; the act must bear such relation to the duty that the accused could lay a reasonable, but not a pretended or fanciful claim, that he did it in the course of the performance of his duty.” The court goes on to give an example where, if a police officer wrongly confines a person in lock-up for more than twenty-four hours without sanction of the court or assaults a prisoner, such police officer is not only abusing his duty but is acting outside the contours of the duty and therefore would not get the protection under Section 197 CrPC.
Case in-Point & Conclusion
There is no doubt that this article has been written in the light of the recent custodial deaths of Jayaraj and Bennix which shook the entire nation and the details of which have caused a chill run down many people. Wherein, the father son-duo owned a woodworks shop in the district of Sathankulam in Tamil Nadu, and due to the ongoing lockdown guidelines, were facing logistical problems. In the course of which, they got into a verbal feud with the police of the same town, due to the slight non-compliance of the guidelines.
On the 19th of June, Jayaraj was called for a police enquiry, and soon Bennix realised the same, and went there.
Bennix’s family, lawyer friends and well-wishers, looked for them for the next 24 hours, but the police denied them from meeting.
The police claimed, that they first took them for their medical fitness test and then to the Judicial Magistrate, D. Saravanan.
In an official statement by Bennix’s lawyer, Maniraman stated in an official statement that, they were severely assaulted, while in the custody of the police. They had to undergo 6 ‘lungi’ changes, as they were severely blood soaked. The victims were beaten up ruthlessly, in the process of which the policemen, stripped them off to be completely naked and subsequently inserted ‘lathis’ or sticks even in their gluteal region, that their clothes were constantly dripping of blood, due to the haemorrhaging of their intestines.
On the 23rd of June they were taken to the Kovilpatti Government Hospital, where they took their last breaths.
The Judicial Magistrate, D Saravanan, did not follow the exact guidelines laid to him by the Supreme Court, and acted mechanically when they were taken to him, and accepted the plea of the police for remand. Which consequently led to all of this.
The above article highlights the various legal mechanisms to oversee the police but despite that, such incidents do not fail to occur. It is also possible that if the incident did not gain media attention, the arrested police officers would be living their life as always. In view of The Vastavik, police is the frontier of protection for our citizens. They try their level best that we can do whatever we want freely without any fear, and we should also appreciate the fact that without them there would be chaos. However, that being said, the duty of the police or the fact that how grateful we are to them, brutalities such as custodial deaths can not and should not be overlooked. The state governments as well as the central government should cooperatively ensure that legal safeguards which have already been devised are implemented thoroughly. And if the governments fail to do this, then they are equally complicit in these crimes which endanger our core values. Next time, no victim of police brutality should need extensive media attention to get justice. Instead, they should have quick access to judicial mechanisms which can help them provide remedies.
The Hindu, Centre of Policy Research, Indian Kanoon, The Print, Statistical Image 1 by The Hindu, Statistical Image 2 by The National Human Rights Commission via latimesghraphics