Custodial Deaths in India: Two Tales of Torture, Death and Despair

GLA University - B.Com | LLB | B.A.
GLA University | B.Com | LLB | B.A.

Custodial deaths in India saw a surge in 2020, even when most of India was under a lockdown. These deaths cannot be seen linearly without drawing back to the sites of injustice. The increase shows that an inquiry is needed to understand how the protector of the state, trespasses the bounds of the law, destroying the last bit of human rights. Such overstepping is often celebrated in commercial movies, and therefore often abuse of power becomes an acceptable norm in reality. Lavanya Gupta and Teesha write about the state of custodial deaths in India. Speaking from the two cases that got some media coverage owing to their brutality, they explain how impunity works for the police in India. And how legal documents like FIR, case files, chargesheet and memos expose the criminalisation of the state.

custodial deaths in india: two cases

By Teesha and Lavanya Gupta, both are the first-year B.A. LLB student from the University School Of Law and Legal Studies, GGSIPU. *The editor has made some contributions to the final cut.

Introduction

“Ek Hota hai policewala aur ek hota hai gunda… hum kehlate hai policewala gunda” (Someone is a cop and someone is rowdy…but I am called a rowdy cop.)

-Salman Khan, Dabangg 3

As heroes leap from one end of the mountain to another, defying gravity and logic, the reality is transgressed. So often, this transgression celebrates police officials abusing power and rampaging encounter.

Movies like Dabangg, Singham and Gangaja work on ‘cop meets saviour complex’ narratives, which romanticise executive overreach. The policemen in movies often contravene the due process, portraying an alternate criminal system, which works with regressive punishment and impunity for rogue police officials.

There’s no doubt that ‘Bollywood’ exaggerates instances of legal overreach as a fantastical and morally upright act. Far from reality, movies in India across regional industries tend to glorify the power of corrupted police officials. And even though cops in India function in a much-muted space, way more ordinary than Bollywood, some sense of the rowdy retains in instances of custodial deaths and extra-legal brutality.

However, this idea and image of the ‘rowdy’ cop, amending the wrongs of the society, is encouraged and appreciated. Therefore, this depiction makes us accepting of custodial death in the name of social morality.

Most of this morality is fueled by toxic masculinity that precipitates our reality. This fantastic and macho figure of an unlawful police official is slowly becoming the norm.

PIMR Indore Admission

In the book ‘Permission to shoot’, Jyoti Beylur says

” There is formal emphasis on the rule of law and due process, but these are viewed by police officers more as obstacles to be overcome in the ultimate quest to tackle crime and law & order problems. The “heroes” or “model cops” to be emulated are those who have proved their “bravery” or “toughness” in the field through dealing with one or more “dreaded criminals” in encounters.” [1]

The statement explains the upsurge in the number of custodial deaths in India.

A report released in 2019 by the National Campaign Against Torture explains Jyoti Beylur’s statement. The report said that, on average, five persons succumb to custodial death. According to the NCAT report 2019, the National Human Rights Commission recorded 1,723 custodial deaths in India.

In addition, NCAT recently published its 2020 report titled ‘India: Annual Report on Torture 2020’, which states that custodial deaths have increased despite the lockdown. The report details:

“Though reported robbery, theft and burglary declined significantly, falling by more than 50 per cent in most countries with the larger decrease in countries with stricter lockdown regimes as per a study conducted by the United Nations Office on Drugs and Crime (UNODC), there has been increased deaths in police custody in India.”

Although traditionally, Maharashtra was considered a forerunner in the number of custodial deaths in India, according to the NCAT 2020 report, Uttar Pradesh recorded the highest number of custodial deaths. Gujarat is only second.

NCAT 2020 report also states that out of the 111 documented custodial deaths, 55 were death by suicide. In case of alleged suicides, Uttar Pradesh topped the charts, followed by Andhra Pradesh and others.

The reason for several custodial deaths remains unknown, hence making them more suspicious. The NCAT 2019 report also states that torture is often used to obtain bribes from detainees and their relatives.[2]

As defined under Geneva Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1987 (also called the Torture Convention), torture is both pain and suffering, whether physical or mental, if inflicted by any official for attaining information. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions, paving its way for the scope of exploitation of these legal sanctions. And in fact, brutal police torture often results in death in custody, and the article will discuss the same further.

The Indian law provides certain bounds for police personnel to protect the rights of the arrested persons. At the time of arrest, the police officer or officer of an investigating agency is authorised to arrest a person if the officer is content that the same is necessary. However, the arrested person must be informed about the grounds of his arrest. Section 56 and 57 of CrPC provide that the arrested person/s needs to be reported ahead of the Magistrate without delay. And the period shall not exceed 24 hours, protecting the person under Article 22 of the Indian Constitution.

Article 22 (1) provides that anyone arrested has the right to consult or defend themselves by a ‘legal practitioner of their choice’. Along with that, the arrested person can also demand a medical practitioner. Although Article 22 guarantees the protection of the arrested persons, the same doesn’t translate very well.

This paper discusses the two cases, Tuticorin Case and Faizan Case, which tells how the law is flouted, and certain discrepancies give leeway for custodial death in India. The case studies will examine the case files, FIR, order and judgment to bring out these nuances. After stating the factual aspects of both cases, the article will analyse the same in light of the guidelines for arrest established by the Supreme Court in DK Basu v. West Bengal, Joginder Kumar vs State of Uttar Pradesh and Prakash Singh vs Union of India.

Case Study 1: Tuticorin (Thoothukudi) Case

After a father-son duo, P Jayaraj and J Bennix, from Sathakulam in Thoothukudi Tamil Nadu, died in police custody, the case caught attention. The same also garnered heat because of its timing. Set around the George Floyd killing in the United States, the case got significant media attention at the time.

The section below chronologically details the horrid facts of the events that led to the death of Jayaraj and Bennix.

Timeline to the Incident

On June 18, 2020, in a small town of Sathankulam in Tamil Nadu, amidst lockdown restrictions in the state, the police had pulled P. Jayaraj and J. Bennix as they hadn’t shut their mobile shop past the curfew time.

On June 19, 2020, the policemen came by again. And as per the CCTV footage, they arrested and picked up Jayaraj(father) for questioning, and Bennix (son) followed them to the station on a bike with his friend. On reaching the police station, the police arrested Bennix too.

The police didn’t allow their friend and relatives to meet the duo until June 20. They were held all night in the Sathankulam police station. The eyewitnesses and friends to the duo said that post 11:30 pm, the assault escalated.

According to Bennix’ sister, Advocate Manimaran, a friend and a lawyer, was present at the police station the night the duo were held. He heard the cops beating Jayaraj and Bennix.

The following day, on June 20, they were first taken to the hospital to get their medical test done. They were then taken to court, where the judge citing the medical report, which claimed the duo were fit for judicial custody, granted the same.

Those who saw the Jayaraj and Bennix said that both of them were bleeding. The family was told to send three sets of clothing, dark coloured towels and medications for the father.

On June 22, the court postponed their bail. The same day, J Bennix was taken to the Hospital in Kovilpatti and declared dead. The following day, on the morning of June 23, Jayaraj died.

FIR Statement

 The father-son duo got arrested under the following sections of Indian Penal Code: Section 188 (Disobedience to order duly promulgated by public servant); S. 269 (Unlawfully or negligently does any act which is, or which has reasons to believe to be, likely to spread infection of any disease dangerous to life); S. 294(b) (sings, recites or utters any obscene song,  ballad or words in or near any public place); S. 353 (Assault or criminal force to deter public servants from discharge of duty); S. 506 (Criminal Intimidation).

Before proceeding, it’s essential to note the FIR statement had telling inconsistencies compared to the eyewitnesses’ account and the CCTV footage.

The FIR, registered on June 19 by Sub-inspector P Raghu Ganesh, stated that the duo had defied the curfew timings and threatened to kill the policemen. The FIR said that the police constables were on their routine patrolling when they saw Jayaraj and Bennix and others violating the lockdown rules.

It stated that when they were asked to shut the shops, both of them used ‘obscene language and rolled on the ground’, which resulted in the duo’s internal injuries. However, the CCTV footage from a shop next to Jayaraj’s shop showed that there wasn’t any crowd, and no one rolled on the ground.

custodial deaths in india
Father, Jayaraj and Son, Bennix

The Particulars Of The Investigation Procedure

On June 24, the Madurai Bench of the Madaras High Court took suo motu cognisance of the death of the Jayaraj and Bennix in The Madurai Bench Of Madras High Court vs The State Of Tamil Nadu.[3]

On June 30, the Madras High Court commented that there was enough prima facie evidence to make out a case of murder against the ten policemen. The HC transferred the probe of the case to the Central Bureau of Investigation (CBI). The Court tasked Anil Kumar, Deputy Superintendent of Police, Crime Branch Crime Investigation Department (CB-CID), Tirunelveli, as investigating officer until CBI took charge.

Following the transfer of the case, on July 2, five policemen out of the ten accused in the custodial death case were arrested and charged with murder. The CB-CID had also applied for their judicial custody.

On July 24, Special Sub Inspector Pauldurai, one of the accused in the custodial death, who had been arrested on July 8, tested positive. On July 28, two other police personnel accused, Muthuraja and Murugan, tested positive.

On August 10, the Accused Special Sub-Inspector of Police, Pauldurai, was declared dead due to COVID 19.

On September 7, CBI filed a second status report in the investigation, which is being monitored by the Madurai bench of Madras HC.

What Did the CBI Chargesheet Say?[4]

On September 26, the CBI had filed its chargesheet against nine police personnel, including Inspector S Sridhar(Prime Accused), K Balakrishnan, P Raghuganesh, S Murugan, A Samadurai, M Muthuraja, S Chelladurai, X Thomas Francis, S Veilmuthu.

The CBI, in this investigation, concluded the following:[5]

  1. The father-son duo were the victims of a ‘criminal conspiracy’ hatched by the policemen.
  2. Jayaram and Bennix were innocent of all charges.
  3. They were tortured repeatedly by the nine accused who were present at the station, and they were beaten turn by turn at the instigation of the prime accused, Inspector S Sridhar.
  4. Another charge that the CBI slapped stated: “Bennix, after the beating, was asked to clean the blood on the floors and the wall; this also led to the destruction of evidence.”
  5. CBI blamed Dr N. Vinila, the Medical officer at the Government hospital, to declare the duo ‘fit for remand’, despite being clear that they were in no way ‘fit’ after the assault.
  6. The CBI also affirmed the discrepancies in the sequence of events mentioned by the police FIR. The CBI chargesheet again debunked the ‘huge crowd’ theory of the police and confirmed that no abuses were hurled.

Nine former police personnel, accused of the death, got charged under several sections of the Indian Penal Code: S.120 B (Party to criminal conspiracy); S. 342 (wrongful confinement); S. 201 causing disappearance of evidence of offence; S.182 (false information), S.302 (punishment for murder); S.193 (punishment for false evidence); S. 211 (false information); S. 218 (public servant framing incorrect record); S.34 acts done by several persons in furtherance of a common intention.

Updates In The Case After Filling CBI Chargesheet

On November 11, the Madras HC dismissed the bail plea moved by sub-inspector S Sridhar and directed the Director-General of Police, Mylapore, to publicise the rights of citizens when approaching police, and asked police to deploy working CCTV in police stations.

On December 4, in the interest of maintaining transparency in such cases, the Madras HC issued directions for preserving the deceased’s body and ensuring the family’s access to the body and autopsy report.

On March 18, 2021, Jayaraj’s wife, Selvarani, approached the Madras HC over her fear that the PI Sridhar could destroy or tamper evidence due to the delay in the case. Taking note of the same, the Madurai Bench of the Madras HC ordered the city court to complete the trial in the case within six months.

Recently, on May 26, 2021, Sub-inspector P. Raghu Ganesh, one of the accused in the case, moved to the Supreme Court pleading for urgent listing of the bail plea. Justice Vineet Saran denied the same owing to Ganesh’s involvement in the case, remarking that the accused ‘should be in jail for some time’.

Case Study 2:  Faizan Custodial Death Case

Faizan was one of the victims of the Riots, which took place in North East Delhi.

During the Delhi Riots in February 2020, a video had surfaced where police personnel were seen harassing and assaulting a bunch of young men, forcing them to sing ‘Vande Mataram’. The video was allegedly shot in Kardam Puri in Northeast Delhi on February 24. Faizan was among the four men who had been tortured. The footage had sensitive content and got verified by Alt News.

Two days after being illegally detained, he was subsequently released, but due to severe injuries, he couldn’t survive.[6]

A month after his death, there was no investigation, and police offered no explanations. This case was highlighted by the Communist Party of India (Marxist) in its petition in the Delhi High Court. The petition detailed the role of the police during the Northeast Delhi riots, and even Amnesty International, in its coverage of the Northeast Delhi riots, mentioned this case.

Timeline Of the Events

On February 24, 2020, Faizan was picked up from the anti-CAA protest site and thrashed by the policemen. He was taken to the hospital later and then brought back to Jyoti Nagar Police Station. Police did not permit the family members to meet Faizan for two days.

On February 26, 2020, the family was asked to come and pick Faizan, as he could not move or speak at that time. Kismatun, his mother, who was 61 at the time, got Faizan home. Faizan later stated that he had been beaten badly.

Recalling his state, she said that he was like a living corpse, black and blue from head to toe, unable to eat, drink or sit up. Kismatun recounted:

“By that time, Dr Khaliq Ahmed, who runs a clinic in the neighbourhood, asked the family to rush Faizan to hospital as soon as he saw him. He was taken to GTB Hospital where he died the next day”.

Additionally, even for his treatment, Faizan had to go through various bureaucratic obstacles. Initially, the Lok Nayak Jai Prakash Narayan Hospital refused to admit Faizan as his medico-legal case was pending at the Guru Teg Bahadur Hospital.

Owing to these delays and torture, Faizan died the same day.

In an interview with the Scroll, dated February 29, 2020, Station Head Officer (SHO) Shalindra Tomar from the Jyoti Nagar police station said that the assault occurred outside his jurisdiction, and the case was registered at Bhajanpura police station.[7]

But the Bhajanpura police station claimed that the medico-legal case was filed in Jyoti Nagar, so it came under their jurisdiction.

This blame game by the police authorities further highlights their apathy towards the victim. Undoubtedly the officials justified their side of the story. They said that what the video shows was part of a measure to save the lives of these five men they found lying stranded on the site.

Their justification contradicts Faizan and his mother’s testimony. Faizan’s testimony was never properly recorded. The other men, especially the younger ones, do not want to challenge the police version. They live with the constant fear of police brutality or being picked up again.

custodial deaths in India kismatun
Faizan’s mother, Kismatun, with his final remains. Source: The Print by Bismee Taskin.

Action Taken By The Authorities In This Case

On February 28, 2020, the Bhajanpura Police Station registered Faizan’s murder case. Though, later the case was transferred to the Delhi Crime Branch.

On September 21, 2020, the Delhi Police Special Cell filed a 24,584-page long chargesheet,[8] which had several allegations against various protesters arrested during the Delhi riots.[9] However, the role of police in Faizan’s death was not highlighted. In his report in the National Herald, Ashlin Mathew stated that the incident had no mention in the chargesheet.

On December 24, 2020, the Delhi High Court issued notice to the Delhi police on a petition by Kismatun, Faizan’s mother.[10] The petition demanded a court-monitored Special Investigation Team (SIT) to probe into the alleged custodial death of her son during the Northeast Delhi riots.

The plea stated:

“(Fazian was in) control and custody of the policemen from the time he was wrongfully confined and assaulted on February 24, till he was finally released in a precarious health condition on February 25 from Jyoti Nagar police station around 11 pm”

It further stated that he had succumbed to his injuries the next day at the Lok Nayak Hospital.

Advocate Vrinda Grover, representing Kismatun, said her son was denied access to critical medical care throughout his illegal detention from the evening of February 24 till almost midnight on February 25. The plea advanced:

“The MLC (medico-legal certificate) from GJB (Guru Teg Bahadur) Hospital dated February 24 records that Faizan was in need of specialised care, but the police took him to Jyoti Nagar police station. It was only when Faizan’s condition turned precarious and it appeared that he may not survive due to the injuries, that he was released from the police station.”

On February 1, 2021, the case was heard through online video conferencing, in which the Court assigned a new date, demanding more evidence to support the claims made in the plea.

FIR Statement[11]

The FIR lodged by the Delhi Police, in this case, does not mention the alleged role of cops in the incident. The FIR lodged regarding the incident at Bhajanpura Police Station makes no mention of the video footage where cops were seen assaulting the men.

The Huffington Post report said that the FIR contradicts the police’s oral version. For instance, the police told Kismatun, on both days, that Faizan was under their custody. But the FIR states that the man died after he went missing from Guru Tegh Bahadur Hospital. Kismatun’s account is more reliable since it is corroborated by neighbour and Faizan’s sister and Faizan.

The apathy and brutality, in this case, go far from what one would imagine. Till now, Faizan’s family has not received a copy of his autopsy report. SIT probe is currently being conducted to investigate this case.

Analysing the Two Case Studies: What Do They Say About Custodial Deaths in India?

Both the Tuticorin Case and Faizan case suggest that the police enjoyed entitlement and abused their powers arbitrarily. Both these cases stretch beyond the principles of normative justice, defying the accused persons’ right to legal recourse.

It’s no question that police brutality is more pervasive against the economically and socially underprivileged. Broadly in both these cases and Faizan’s case, specifically, economic vulnerability and religious identity could have played a role in giving police free reign.

The police, hospital administration and the lower Court were complicit directly or indirectly in killing the father-son duo.[12] For instance, in the medical examination for custody, the doctor had declared Jayaraj and Bennix as ‘fit for remand’ despite their battered state.

Even the Magistrate had given a free pass to the police officials without following due procedure and probing the officials.[13]

The NHRC[14] study on increasing custodial deaths reflects a severe lack of accountability. And the Tuticorin case serves as a testament of the same.

The Human Rights Watch 2016 report suggests that the increased abuses and torture result from a lack of a routine ‘accountability mechanism’. The report cited seventeen such cases where there were inconsistencies in arrest procedure, which included ‘documenting the arrest, notifying family members, conducting the medical examination, etc.’. However, due to the lack of checks and balances, these irregularities go scot-free.

Although in Faizan’s case, such lapses were not explicit, some irregularities and blatant role of the administration together amounted to his death. But if the state maintained a check, such custodial deaths could have been avoided.

In D.K. Basu v. State of West Bengal[15], the Honorable Supreme Court had laid down specific guidelines for arrest or detention. Many of these guidelines were flouted in the cases mentioned above.

For instance, the guidelines require that the police officer must make an arrest memo. But the same was not present in the Tuticorin case. As stated in the D.K. Basu guidelines, the police personnel, must inform the arrest’s timing and place to arrested persons’ acquittance within  8- 12 hours of their arrest. However, not even a single person was informed regarding the arrests, in the case of Faizan and Jayaraj and Bennix.

It is also required that the police record any minor injury on the arrested person’s body. In both cases, the police inflicted major injuries while torturing the accused, but the same doesn’t figure on record.

It is required that the arrested person be allowed to meet their lawyer during interrogation. In the cases, neither of the deceased got to meet their lawyers.

Joginder Kumar vs State of UP laid guidelines for illegal detention, which were also violated. As opposed to the guidelines, the arrested persons were not allowed to contact their relatives. Moreover, the Magistrate shirked from his duty of assuring that the due procedure was followed.

Undoubtedly these events provoke both outrage and a feeling of dissatisfaction from the current institutions and administrative machinery.

For better protection of human rights and matters connected or incidental, the Protection of Human Rights Act 1993 necessitates reporting custodial deaths within 24 hours. It also mandated a post-mortem examination by a board of doctors, including video filming of the procedure. It advances that the autopsy report should be provided to the family members. However, Faizan’s medical reports were not provided to the petitioner, which hints towards the combined malign of different entrusted authorities.

Joginder Kumar vs State of Uttar Pradesh also states that the police must provide grounds for an arrest. The police officer is accountable for the justification of his/her action.[16] But the police defied the same through the arbitrary action without giving any reasonable grounds.

To date, no proper action has been taken against the officials involved in the Kismatun petitions. Instead, the Court has demanded more proof[17].

CONCLUSION

The delay in justice and deliberate overshadowing of details in both cases is a testament that the judicial system is often complicit.

This paper has aimed to dissect and analyse the problem of custodial deaths in India. The reader by now may have a fair understanding of custodial deaths in India, what are their causes and what frameworks are already in place to combat them.

The arbitrary character of the police force and the sluggish response of the judicial system, especially lower courts, can prove detrimental to correction and reform in the criminal justice delivery system.

A blatant disregard for all procedures makes the trial a punishment. These cases only display the whims of the state, especially involving dissenters or political prisoners.

It is essential to point here that ambiguities in the language of the law give space for miscarriages of justice. ‘Custody’, for instance, is not defined under the law. Even though some guidelines and precedents provide an interpretation of the word, there needs to be a legislative definition that’s more specific and hence less prone to loopholes.

Although the paper presents statistics from NHRC and NCAT reports, however, they cannot contain the loss and despair of the families of those who died under custody.

Both the cases have certain similarities, but the most prominent is apathy within the administration and executive, which function with a disregard for law and the Constitution. The Indian legal system and the Constitution have extensive legal material in precedents, Codes and guidelines. If each of these are followed, the chances of such violations could become rare.

The Criminal Code of Procedure also needs a fresh look to avoid the scope for such violations. Misuse of authority by a few leads tend to tarnish the image of the entire Police force and induces fear in the mind of citizens.

Endnotes

[1] Jyoti Belur Permission to Shoot? Police Use of Deadly Force in Democracies, Published by Springer (2010 ed.)

[2] Saini, R. (1994). CUSTODIAL TORTURE IN LAW AND PRACTICE WITH REFERENCE TO INDIA. Journal of the Indian Law Institute, 36(2), 166-192.

[3] Suo Motu W.P. (MD) No.7042 of 2020

[4] CRL.O.P.(MD). Nos.9274 and 9290 of 2020

[5] November 3, 2020, 20:27ETB Sivapriyan, Deccan Herald, Chennai

[6] Kismatun Vs. State Of Nct Of Delhi Through Home Department & Ors.

[7] Scroll.in ‘delhi violence: victim seen in police brutality video from shahadra dies days after incident (feb29,2020 9:29 am)  https://scroll.in/video/954688/delhi-violence-victim-seen-in-police-brutality-video-from-shahdara-dies-days-after-the-incident)

[8] Outlookindia.com Delhi riots: FIR omits mention of police in the death of a man who was made to sing the national anthem (19 June 2020) https://www.outlookindia.com/website/story/india-news-delhi-riots-fir-omits-mention-of-police-in-death-of-man-who-was-made-to-sing-national-anthem/355017

[9] ‘Delhi riots: Glaring loopholes in the chargesheet filed by police’by ashlin Mathew( sept24,2020 2:00 pm) https://www.nationalheraldindia.com/india/delhi-riots-glaring-loopholes-in-the-chargesheet-filed-by-the-police

[10] W.P. (CRL) 2195/2020, CRL.M.A. 18056/2020 & CRL.M.A. 18057/2020

[11] FIR 75/2020. P.S. Bhajanpura dated 28.02.2020

[12] “Deaths in Custody in India Highlight Police Torture”, Human Rights Watch, June 30, 2020 https://www.hrw.org/news/2020/06/30/deaths-custody-india-highlight-police-torture

[13]“Justice for Jayaraj and Bennix Means Ending a Culture of Impunity” By Hugo Gorringe and Karthikeyan Damodaran, The Wire, July 2nd, 2020 https://www.google.com/amp/s/m.thewire.in/article/rights/jayaraj-bennix-custodial-deaths-impunity/amp

[14]“NHRC recorded 31,845 custodial-death cases between 1993 and 2016: Report”, Business Standard, December 11, 2019 https://www.google.com/amp/s/wap.business-standard.com/article-amp/pti-stories/nhrc-recorded-31-845-cases-of-custodial-death-between-1993-2016-report-119121001554_1.html

[15] D.K. Basu vs. State of West Bengal (18.12.1996 – SC): MANU/SC/0157/1997

[16]Joginder Kumar vs. State of U.P. and Ors. (25.04.1994 – SC) : MANU/ SC/0311/1994

[17] “An Indian man died after being beaten by police on video. One year later, no one has been held accountable.” By Niha Masih, The Washington Post April 8, 2021 https://www.washingtonpost.com/world/2021/04/06/india-delhi-riots-deaths/

 

 

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