Image Courtesy:hindustantimes.com
A Single-judge bench of the Jharkhand High Court presided by Justice Sanjay Kumar Dwivedi recently ordered that compensation be paid in a matter related to a case of alleged illegal detention. However, the court did not order any inquiry into allegations of custodial abuse, despite the fact that no First Information Report (FIR) was lodged against the victim.
In its judgment dated March 24, 2022, the court awarded compensation of Rs. 50,000/- only for illegal detention, not making any decision about custodial death while relying upon the inquiry report made by a three-member Committee.
The matter pertains to the alleged illegal detention and custodial torture of one Pradeep Kumar, and upon his death, his widow Jaswa Devi filed a Criminal WritPetitionseeking directions from the court to register an FIR relating to custodial death. She also prayed for compensation of Rs. 20 Lakhs.
Facts of the case
On March 13, 2017 at around 1:00 P.M, Pradeep Chaudhary along with some villagers went to KalluChok to play Holi. Someone from the crowd put Abir (Gulal) on one of the constables of Satgawan Police Station, as a result of which the constable became furious and called other police personnel from the Satgawan Police Station.
As the villagers saw the Chowkidar getting furious, they all ran away, but unfortunately Pradeep Chaudhary got caught by the Police and was badly beaten up. He was then taken to the Police Station and was allegedly detained illegallyfor almost 16 hours. He was allegedly beaten brutally and tortured by the police, as a result of which he died.However, no case was registered against Chaudhary nor was he a suspect in any case.
Petitioner, Jaswa Devi, widow of Pradeep Chaudhary, registered an FIR regarding the death of deceased in the Koderma Police Station on March 15, 2022, which was recorded by Inspector cum Officer in charge of Koderma Police Station. The FIR was registered in presence of family members and well-wishers of the Petitioner. Consequently, a Criminal Writ Petition was filed in the High Court of Jharkhand on July 17, 2017 which was taken up for its first hearing on January 19, 2018.
State’s submissions
As submitted by the Learned Counsel representing the State, the deceased, Pradeep Chaudhary died in hospital and not under Police Custody. He further brought the Court’s attention to the Order of Deputy Commissioner, Koderma, which directed the Magistrate to hold an enquiry in the matter. He further referred to the joint enquiry report (three-member Committee report) filed after the Magistrate’s enquiry, in which it was proved that the deceased Pradeep Chaudhary was subjected to police torture, but shockingly it could not be proved, that he died because of police torture.
The Learned Counsel of the State also brought to the Court’s attention that a departmental enquiry has been initiated against one of the officers, as per which it was recommended that he be punished with a deduction of 5% from his pension for two years.
High Court Judgment
The Jharkhand High Court presided by Justice Sanjay Kumar Dwivedi on March 24, 2022 passed a Judgment in the Criminal Writ Petition Filed by JaswaDevi(Jaswa Devi V/s. State of Jharkhand &Ors.). The High Court observed that the deceased was wrongfully deprived of the right of personal liberty, guaranteed under Article 21 of Constitution of India, by the police officer for around 16 hours from March 13 to March 14, 2017 and also held that the death of the deceased was not proven in the committee report as custodial death.
The High Court in its Judgment dated March 24, 2022 awarded a compensation of Rs.50,000/- to the Petitioner which has to be paid in 4 weeks by the State of Jharkhand. The Court also said that the Petitioner by this Judgment is not precluded from pursuing the civil as well as criminal remedy, available to her in law in respect of wrongful confinement of the deceased.
The High Court Order may be read here:
Recent Custodial deaths
Among cases of recent custodial deaths is the shocking case of 22-year-old Altaf, in Uttar Pradesh’s Kasganjwho was found strangled in a police station toilet. Images of his dead body went viral and it was learnt that he had been detained in connection with the disappearance of a minor girl from a Hindu family. Following the incident, five policemen were suspended from the Kotwali Police Station in Kasganj. They had claimed that Altaf had hangedhimself with a drawstring from the hood of his jacket, using a water pipe in a toilet, however the pipe as was evident in the now viral images, was just a couple of feet from the ground.
In June last year, both P. Jeyaraj (58) and his son Bennix (38), were arrested for allegedly violating Covid-19 lockdown rules by keeping their store open past the allowed hours in Tamil Nadu. Two days later, they died due to alleged police brutality. The growing outrage across the country over their deaths put a massive spotlight on custodial deaths, reviving demands for police accountability.
In September, the Allahabad High Court transferred the probe of the custodial death of a 24-year-old man Krishna Yadav in Jaunpur to the Central Bureau of Investigation (CBI). A Special Operations Group team of the police and the Station House Officer (SHO) of Baksa had in February gone to Yadav’s house and allegedly taken him away to the police station for detention in relation to a loot case. While the family accused the police of murder, the police said that Yadav was apprehended while he was driving a motorcycle, and he fell and got injured. He was sent to hospital for treatment but was declared dead.
Shahbuddin, Ziyauddin’s brother, alleged that on March 24 the latter left home to go to a relative’s place but, on the way, members of a police team picked him up and tortured him, causing his death. Ziyauddin was “beaten to death,” alleged Shahbuddin in his police complaint, accusing the police team of murder. Police had said that during questioning, Ziyauddin complained of feeling unwell and was admitted to the district hospital where he died.
“In the last two decades, 1,888 custodial deaths have been reported across India, with 893 cases registered against police personnel a mere 358 police officers and justice officials were formally accused. Just 26 policemen were convicted in this period, official records show,” reported Deutsche Welleon November 11, 2021.
In August 2021, the Chief Justice of India, N.V. Ramana, while expressing concerns about human rights violations in police stations which are leading to custodial deaths said, “Lack of effective legal representation at the police stations is a huge detriment to arrested or detained persons.”
Custodial Death and Laws
Under Indian Penal Code there are indirect provisions for Custodial torture and wrongful detentions which are not sufficient to end the police brutality and the abuse of power attempted by them in numerous instances.
Constitution of India
Article 21 – Protection of life and personal liberty
“No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Provision under Indian Penal Code
For custodial torture
Section 166: “Public servant disobeying law, with intent to cause injury to any person.—Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.”
For wrongful detention
Section 340: “Wrongful confinement.—Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said “wrongfully to confine” that person.”
Section 342: “Punishment for wrongful confinement.—Whoever wrongfully confines any person shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.”
Provisions under Code of Criminal Procedure
Section 76: “Person arrested to be brought before Court without delay.—The police officer or other person executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without unnecessary delay bring the person arrested before the Court before which he is required by law to produce such person: Provided that such delay shall not, in any case, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court”
International Conventions
Even though Indian laws are not upto the mark with respect to custodial torture and wrongful detention, International UN Conventions are made to control these kinds of illegal activities by Public Servants who are meant to protect the public from any wrongful activities taking place.
International Convention for the Protection of All Persons from Enforced Disappearance – adopted on December 18, 1992.
Article 1
1. No one shall be subjected to enforced disappearance.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.
Article 2
For the purposes of this Convention, “enforced disappearance” is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.
International Covenant on Civil and Political Rights – adopted on March 23, 1976
Article 9
1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable tine or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment – Adopted on December 10, 1984.
Article 1
1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application.
Article 2
1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
2. No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture.
3. An order from a superior officer or a public authority may not be invoked as a justification of torture.
Article 4
1. Each State Party shall ensure that all acts of torture are offences under its criminal law. The same shall apply to an attempt to commit torture and to an act by any person which constitutes complicity or participation in torture.
2. Each State Party shall make these offences punishable by appropriate penalties which take into account their grave nature.
Related:
Preventive Detention: Two judgements, two contrasting views, one judge
Why has India still not ratified UN Convention against torture?
Protecting and Promoting Minority Rights in India’s Criminal Justice System: Need for a Special Law