In most cases, the police investigate the police, and due processes are rarely followed.

Custodial death judicial magistrate CrPc 176 High Court Supreme Court
news Human Rights Thursday, July 23, 2020 - 18:41

Srilam Rangaiah was arrested on May 24 2020 by the Manthani police station of Peddapalli district in Telangana, for allegedly hunting wild animals using traps. But he was not produced before court within 24 hours as mandated by law. In the wee hours of May 26, Rangaiah was found dead, hanging from a yellow duppata in the station's toilet.

The family, already struggling to make ends meet, did not file a complaint against the police. There was no public outrage against the alleged custodial death apart from a press conference by the local Congress MLA. A lawyer fighting agianst human rights violation approached the Telangana High Court seeking a Central Bureau of Investigation (CBI) or a judicial inquiry. The court appointed the Hyderabad Police Commissioner to investigate and file a report. The report gave the officers involved a clean chit in June, and that was the end of the case.

Almost 1,500 km away in Tamil Nadu’s Sathankulam town police station, Bennix and his father Jayaraj were brutally tortured on June 18. Both men died soon after, resulting in social media outrage and protests. The Madras High Court even took up the case suo motu, while the three officers involved in the brutal killings were arrested and the case handed over to the Criminal Investigation Department (CID), and then to the CBI. Now, a chargesheet is awaited. Unlike the alleged custodial death of Srilam Rangaiah, that did not get any eyeballs at the state level, the death of the father-son duo in Tamil Nadu resulted in protests in the state and national attention through social media outrage.

PV Nagamani, the advocate who petitioned the Telangana High Court over the custodial death of Rangaiah is livid over the differential treatment to custodial deaths by the judiciary depending on public outrage. “A judicial magistrate should have carried out an inquiry after Rangaiah’s death was reported. But despite the magistrate calling up the police, informing them about his availability, the inquiry was done by the District Revenue Officer.” says the lawyer.

Across the Southern five states, there is no uniformity in the way the police and the judiciary react when a custodial death gets reported. Under Section 176 (1A) CrPC (Criminal Procedure Code), a judicial magistrate is to conduct an independent inquiry, but not all states follow the rule book. What is worrisome is that the police in Andhra Pradesh and Telangana are never questioned over this lapse. In cases where the CID, the CBI or a Judicial Commission gets appointed, the case rarely moves forward, and chargesheets rarely get filed, after the final investigation report is filed.

Read: Probe into encounter of Hyd gangrape accused makes no progress amid lockdown

Read: Justice for Jayaraj and Bennix: Timeline of two shocking custodial deaths in TN

In Andhra Pradesh, for instance, the allegations of custodial deaths do not even receive much attention from the public, nor does the judiciary pick up the cases on a suo motu basis. As retired Justice K Narayana Kurup of Kerala puts it, "There is often a lot of pressure at the beginning when a case gets reported, with some media following up. But the issue dies down. In most cases, it goes completely unreported and the issue dies down. There is a need to mount pressure."

In the custodial death of Rangaiah, Nagamani alleges that the Telangana High Court committed an error by not appointing the CBI or a judicial commission to investigate. “It's not as if I have great faith in their investigation, but appointing the police itself to investigate the police is not going to give any result,” says the lawyer.

“The Commissioner filed a report, which I as a petitioner was not even allowed to view. How will I counter the police version when I don't have access to the report itself?” he asks. The lawyer alleges that the victim’s family was intimidated by the local police to not make the death an issue. “They were offered jobs, money. The postmortem was not done properly and the body burnt in haste,” Nagamani adds.

In an analysis of the National Crime Records Bureau (NCRB) data carried out by The Hindu, a total of 1,727 custodial deaths were reported from across India between 2001 and 2018. The eight years of custodial deaths saw just 810 cases registered against the police, with police getting chargesheeted in only 334 cases. Just 26 policemen faced convictions.

Judicial magistrate? Never heard of that

On April 16, 2019, an unidentified man was taken into custody under the Ajith Singh Nagar police limits in Vijayawada over allegations of theft. The man died – allegedly killing himself while at the police station lock-up. Three officers were briefly suspended over negligence.

Human rights activists who carried out a fact-finding mission tell TNM that the police station was small and that there was no way the officials could not have noticed a suicide attempt.

No judicial or metropolitan magistrate enquiry was carried out under Section 176 (1A) of the CrPC. No inquest procedure video, as per the National Human Rights Commission guidelines for custodial deaths, was recorded either. “These cases never reach the court, the police write it off as a suicide,” says G Rohit, the Krishna district convener for Humans Rights Forum (HRF), a humans rights advocacy group in Andhra Pradesh. Even in the alleged custodial death of Rangaiah in Telangana, the police never carried out a video inquest of the deceased person's body.

Read: A timeline of alleged police brutality in Telangana amid the COVID-19 lockdown

At Agali forest in Palakkad, where four suspected Maoists were killed in October 2019, no enquiry by a judicial magistrate was carried out. “The High Court did not even accept my petition claiming I had no locus standi in the matter. The family of the deceased are poor and have been intimidated by the police to not pursue the matter,” says Pouran PA Advocate from Kerala who petitioned the state High Court over the alleged fake encounter.

Andhra Pradesh in 2017 topped the custodial death charts recording 27 instances of custodial deaths according to NCRB data. “In many of these cases, the police don't appoint a judicial magistrate to investigate the case as mandated by law. An executive magistrate who is usually a District Revenue Officer conducts an inquiry and a higher official conducts another inquiry then suspends the officials temporarily. The cases end there. That is the norm in these cases,” says K Sudha, the general secretary for the HRF. “These cases don't even get noticed by the courts, the deaths get reported in vernacular newspapers as a small brief,” she adds.

On October 6, 2018, Jashuva Nagadasu a 19-year-old Dalit youth from Venkatapuram village of West Godavari district killed himself after writing a 12-page suicide note alleging police brutality. The HRF, in their fact-finding report, stated that the teen was tied to an electric pole and beaten up at Rayajunduru village and later taken to the Veeravasaram police station on October 1, 2018. After protests by the family and Dalit activists, two police officers were briefly arrested.

The West Godavari police did not respond when approached for an update on where the case stands. The death of the youth is one of the rare cases from the state where police officials were arrested in the past two years.

Where is the chargesheet?

In the case of the judicial custody death of Syed Fairoz, advocate Shivamani from Bengaluru last heard from the CID in January 2020. Fairoz was a 19-year-old undertrial prisoner, and was allegedly tortured for three days inside the Parappana Agrahara Central Prison in Bengaluru, Karnataka in January 2019. He was admitted to the Victoria hospital on January 21 for treatment but died after two days.

“We don't know if the CID finished their investigation and filed a chargesheet,” says the lawyer. A chargesheet is a final report prepared after the investigation, and helps kick off the trial.

Read: 'Fairoz was beaten, cops refused treatment': Brother of Bengaluru undertrial who died

“The investigators have collected statements from several prisoners including one of Fairoz’s brothers who was at the time present in the jail. There is solid evidence, but after collecting the statements there has been no word from the police,” says Shivamani.

When TNM contacted Justice K Narayana Kurup in Kerala, he was writing the judicial commission report on the custodial death of Rajkumar, a native of Kolahalamedu in Vagamon, who was arrested by the Nedumkandam police on June 12 in connection with a financial fraud case.

Rajkumar, according to his kin, was taken into police custody on June 12, 2019, but his arrest was notified only on June 15. He was not produced in court for four days. His post mortem report revealed that the 46-year-old was subjected to the infamous Falanga torture which involves continuously beating the soles of the victim’s feet. Four of his ribs and his sternum were fractured, and contusions were detected on the soles of his feet. The autopsy report stated that there were 22 injuries on his body.

“I re-ordered the Prost Mortem Examination (PME) because the first autopsy report was not carried out properly,” Kurup tells TNM.

Read: Rajkumar custodial death: Witness reveals police tortured man ‘like he was an animal’

All lawyers TNM spoke to over the course of the past few weeks say, even after these reports get filed, chargesheets are rarely filed and even if they do, the road to a verdict could take time.

On July 20, the Mathura sessions court in Rajasthan sentenced to life 11 police officials over the alleged encounter killing of Raja Man Singh, the Bharatpur MLA, and his two associates. The encounter killing of this member of the Rajasthan royal family took place on February 20, 1985, and led to the resignation of the then Chief Minister Shiv Charan Mathur of the Congress Party. The verdict in this high profile case came after a span of 35 years.

“There is no value for the life of the common man in the judiciary,” says Murali Karnam, associate professor, NALSAR University of Law who adds that the list of cases that have gone cold in the judiciary is long. The assistant professor reasons that the delays from the judiciary are tied to its dependence on the police for investigation. “Even if a judicial magistrate is appointed, they don’t always proactively investigate. They depend on the police itself to collect evidence for them,” says Murali.

The Judiciary only plays the role of a controller, which is decided by the Executive, points out the assistant professor. “This presents a theoretical problem – how much of the Executive has to be controlled is decided by the Executive itself. It doesn't give enough power to the Judiciary," says Murali.

“The whole delay in justice delivery only exposes the complicity of the judiciary. They keep giving adjournments to the case. In the end, it is the common man who has to pay the price with his life. If you are an executive, you just want to hold on to your posting. There are enough law commission reports that provide ample solutions to the problem. But if things must change, the issue of custodial deaths and encounters must be picked up by the public and become an election issue,” he says..

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