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The Madurai Bench of the Madras High Court has issued specific directions relating to steps leading to a post mortem, especially in cases alleging custodial deaths while allowing relatives to take photos and videos of the dead body before post mortem.
The single judge bench of Justice GR Swaminathan in the judgment dated December 2, 2020 also re-emphasised the judgment passed by it in September this year, regarding installation of CCTVs in dissection halls and mortuaries.
Background
The petitioner and his family belong to Scheduled Caste and due to rift in the family caused due to petitioner’s older brother falling in love with a relative, the matter had reached the police. The elder brother and the relative were untraceable and the woman’s family alleged abduction hence, the police called upon the petitioner and his family for enquiry from time to time.
On September 16, the police came to the petitioner’s house and allegedly assaulted him and his younger brother and took away the latter in custody. The next day, Ramesh, the younger brother was found hanging on a tree and it is alleged that he was tortured by the police and to cover up the crime the police made it appear as though Ramesh committed suicide.
Proper post mortem
The petitioner lodged an FIR and he was assured that post mortem will be conducted but he alleged that a farce of an autopsy was conducted instead and the family was forced to accept the body and was put in a coffin and buried. Thus, this petition was filed seeking directions to exhume the body and conduct a proper post mortem. Accordingly, the second post mortem was directed by the high court on October 8 and it was duly carried out and was directed to be videographed with the petitioner’s counsel and an expert to be present. It was brought to the court’s notice that “Though it was originally claimed that the entire autopsy had been duly videographed and even a statement was made in writing to that effect in the status report, it turned out that what was recorded were only brief clippings. A proper videograph was not at all taken.” Hence, the petitioner’s counsel insisted that appropriate directions be issued for future observance and strict compliance in cases of custodial death or where it is alleged that the death is due to police torture.
The court relied on and re-emphasised the specific directions issued by the Madras High Court in Public Interest Litigation in W.P.(MD)No.78 of 2019 (decided on September 28, 2020) relating to post mortem. These directions include display of notice in hospitals informing that there will be videographing of post-mortem in case of request from relatives, installation of CCTV cameras in the mortuaries as well as in the dissection halls, appointment of scientific officers at government hospitals and so on.
Transfer of case in custodial death matters
The petitioner insisted that the matter be transferred to another agency for investigations since the allegations were made against the police and it would not be in the fitness of things to permit the investigation to be conducted by the Deputy Superintendent of Police, District Crime Branch, Madurai District. The court accepted this contention and held, “interest of justice certainly demands that the investigation is transferred to some other agency…It would suffice if investigation of the case…is entrusted to CBCID, Madurai District”.
The court directed that the CBCID conclude the investigation within a period of four months and submit the final report before the jurisdictional Court.
Custodial death
“Every time a custodial death occurs, the legitimacy of the State suffers a big dent. That can be set right only by ensuring transparent investigation. A dead person is equally entitled to justice. I would call it posthumous justice. Whenever someone suffers an unnatural death, the circumstances that led to it will have to be unearthed. Otherwise, there would be no closure,” said the court.
Directions
The court keeping in mind the allegations of custodial deaths and how post mortems hold important evidentiary value in these cases, issued following directions:
(i) The Judicial Magistrate conducting the enquiry under Section 176(1)(A) Cr.P.C. shall ensure that the family of the deceased or its representatives are given access to see the body both front and back and are also allowed to take video and photos.
(ii) No autopsy shall take place or commence without the next of kin having seen the body. Of course, if the family of the deceased refuses to see the body, even after so being permitted by the concerned Judicial Magistrate conducting the enquiry, the Judicial Magistrate can, in writing, permit the conducting of postmortem.
(iii) The autopsy shall be carried out by a team of two doctors who have a master’s degree in forensic medicine and are attached to a Medical College and Hospital in the State. In other words, what is called as forensic autopsy must be conducted.
(iv) The autopsy shall be done by adhering to the norms laid down by the Hon’ble Division Bench in V.Eswaran vs Government Of Tamil Nadu, dated 16.04.2019 in W.P.No.10694 of 2019 and in W.P.(MD)No.78 of 2019, dated 28.09.2020.
(v) The whole body shall be x-rayed in order to find out if there are any fractures. The entire autopsy should be videographed from the start of the examination till its completion by adhering to the following six phases set out in Modi ‘a Textbook of Medical Jurisprudence and Toxicology’ 26th Edition edited by Justice K.Kannan.
The Textbook of Medical Jurisprudence and Toxicology (26th Edition edited by Justice K.Kannan) contains specific instructions regarding post mortem in custodial death cases on who should conduct a post mortem, how it should be video recorded phase by phase detailing how every part of the body is to be examined. It also states that the video should be comprehensive and detailed, the date and time should appear while recording and context should be established by shooting from different angles.
Further it makes important directions on custody of the recorded tape and states that the forensic medicine expert conducting the autopsy should ensure immediate sealing of the memory chip/video cassette and its immediate dispatch with all required particulars to the inquest authority, who in turn should send it to the National Human Rights Commission.
The court stated that if after receipt of the autopsy report, the legal heir/representatives of the deceased family give in writing that they intend to move the High Court, the body shall be preserved in the mortuary for at least 48 hours. If the body is disposed of either by cremation or otherwise in the meanwhile, the very purpose of holding a second postmortem will be rendered infructuous.
The court pointed out how hasty cremations such as in Hathras case led to controversy and, “It is in the interest of the police to take the family of the deceased into confidence and avoid rushing things through. They are stakeholders in the process and the police have to treat them accordingly.”
The high court order may be read here.
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