Custodial Torture Case: Gujarat HC orders a probe into allegations

Gujarat HC
Image Courtesy: iilsindia.com

On Monday June 16, 2022, the Gujarat HC hearing a petition filled by the Mansukh Kumar khaniya and others victims of custodial torture, ordered a fresh probe into the allegations of custodial torture. The police have been granted time till July 4 to file a progress report on the details of further inquiry. The HC also pulled up the state for “misleading the court”.

Brief Background of the Case

On February 04, 2015, two couples were arrested in connection with a First Information Report (FIR) registered in Dhandhuka Police Station in Ahmedabad district for offences under sections 328 and 394 of Indian Penal Code 1860, in which allegations were made against the couples and police sub-inspector Rajendra Karmatiya arrested Mansukh Kumar khaniya, his wife Mina, his brother Rasik and his wife Rina. Both persons are residents of Tagdi village in Ahmedabad district and belong to Devipujak sect, listed as a nomadic and marginalised community. Days later, the brothers and their wives were arrested in four other undetected offences registered in different police stations between 2013 and 2015 based on their “confessional” statements SI Karmatiya, then posted with Dhandhuka police station, had arrested them in a case related to an attempted robbery.

These persons were then allegedly harassed and tortured in police custody. According to the confessional statements of the victims, four other such cases for undetected offences were made against them by concerned police stations. The trial Courts have acquitted the victims in all these four cases. The four persons from the Devipujak community who were “illegally detained” and subjected to custodial torture moved the Gujarat HC in 2015, seeking action against erring police officers and compensation.

The order of the Gujarat HC states:

“The HC was shocked to find that the police officials held biased opinions against the Petitioners(the victims of police profiling and brutality) as they belong to a particular community. This is a clear case of communal profiling. It also appears from the report that numerous cases are filed against a near relative of the present Petitioners. Through the report it also appeared to the Court that the Petitioners appeared to be victims only because of their birth in certain community, Shabrang India reported on April 01, 2022”, stated Hon’ble Mr. Justice Desai

Hon’ble Justice Nirzar Desai in his order on June 16, 2022, said that he was “not satisfied” with the investigation and asked the assistant public prosecutor on behalf of the investigating agency to file a fresh affidavit with “some concrete action and promptness and granted time till July 4 to the state to file a progress report on the details of further inquiry while pulling it up for “misleading the court”.

Previous order of the Gujarat HC

The Gujarat High Court has passed an oral order on March 16, 2022Mansukhbhai Valjibhai Kumarkhaniya (Devipujak) & 3 other(s) Vs. State of Gujrat& 5 Other(s), R/Special Criminal Application No. 2249 of 2015, asking the state government to respond as to why “exemplary compensation” shouldn’t be paid to the victims, the single-judge Bench of Hon’ble Mr. Justice Nikhil S Kariel ordered the Inspector General of Police (IGP), Ahmedabad range, to conduct an inquiry into the case.

Justice Nikhil S. Kariel in para 3 of the Judgement held that “This court is of the prima facie opinion that this is a clear case of extreme excess by the concerned police authorities and whereas even senior officers of the level of DySP (deputy superintendent of police) and SP (superintendent of police), who were supposed to hold an impartial inquiry, have just conducted a sham inquiry maybe in order to protect their subordinates,”In March 2022, the HC held that they were “prima facie… falsely implicated in five FIRs”, and ordered for an inquiry. The court observed that they were held victims “on account of their birth in a particular community”, and the said community purportedly believed to indulge in theft and illegal activities.

Custodial Torture and Supreme Court Ruling

Custodial torture a form of torture that generally happens when a person alleged of any crime is under the custody of law enforcement officials. The Supreme Court, in the case of D.K. Basu, Ashok K. Johri Vs State Of West Bengal(1997) 1 SCC 416: 1997 SCC (Cri) 92laid down a legal framework to prevent custodial violence and death. It issued eleven directions that would govern arrests/detention, in addition to the then-existing constitutional or statutory provisions. These directions included:

1.Police personnel involved in arrests and interrogation must bear visible and clear identification with their name and designations. These details must be further recorded in a registry.

2.The officer conducting the arrest must prepare a memo with details of time and date of arrest – this memo should have the signature of the arrestee and of either the arrestee’s family member or ‘respectable person’ from the locality of the arrest.

3.Details of the person’s arrest must be shared with his/her friend of the family.

4.If the friend/relative of the arrestee resides outside the area of the police station, the police should communicate the details of the arrest within 8-12 hours.

5.The arrestee must clearly be communicated of his/her right to have his/her friend or relative informed of the arrest.

6.The police must enter in the diary details of the arrestee and communication to his/her relative or friend.

7.At the time of the arrest, the arrestee must be inspected and if he/she bears any injuries this must be recorded in an ‘inspection memo’.

8.The arrestee must be taken for medical examination every 48 hours of his/her detention.

9.The copies of all documents referred in above must be sent to the magistrate.

10.The arrestee may meet with his/her lawyer during the interrogation.

11.The details of the arrest must be communicated to a police control room within 12 hours of the arrest and the control room should display details of the arrest in the notice board.

Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render his liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter.