Custodial torture and violence is wrong. It is time for a stronger law

Jayaraj and Bennicks died not just due to abuse, but also because of the apathy of the magistrate and doctors

Custodial violence has not been clearly defined under any law. It is often tactically approved as a means of getting information regarding a crime, the names of accomplices or to extract confessions. Whenever questions are asked about the lack of strong laws on custodial torture in India, the standard reply is that existing laws are adequate to deal with this.

The custodial deaths of a father and son, Jayaraj and Bennicks at the Kovilpatti subjail in Tuticorin,Tamil Nadu, have raised some serious questions. It is a case in which the police registered an FIR that puts the entire blame on Jayaraj and Bennicks. The FIR states that when the beat police asked them to close their shop, they abused and prevented the constables from discharging their official duty, and threatened dire consequences. It further said that they resisted arrest and started rolling on the floor, which caused their injuries.

The Indian Evidence Act, 1872, provides that a judicial officer is supposed to draw the presumption that judicial and official acts have been performed in an appropriate manner. The allegations in this FIR appear to be false and manipulated. This is substantiated from the videos that have given a different picture of the place, time, and circumstances of the arrest.There are news reports that there were multiple injuries on the gluteal region, anus and the knee bones of both persons. The question then is: Should such presumptions of law continue in favour of official acts?

While these videos are doing rounds, doubts remain whether these will become part of the charge-sheet.Will they be considered at the time of trial? In the past, many such pieces of evidence were either not included in the charge-sheet or were not relied upon during the trial. The law offers some protection against custodial torture. It mandates that the person arrested must be produced before the nearest magistrate within a period of 24 hours of such arrest and that he cannot be detained beyond this without the authority of a magistrate. The purpose of this law is that the magistrate would examine the condition of the accused and decide whether there is a fit case to extend the custody.

If the news reports are true, the role of the magistrate who remanded the two to judicial custody raises a lot of questions. The magistrate of Sathankulam allegedly did not meet the accused before remanding them to custody. He did not check if they were injured or whether they required any medical help.

Reports also suggest that the magistrate passed the order for remand through videoconferencing during which he did not enquire about their condition.

At the Kovilpatti sub-jail, a medical check-up of the two revealed serious injuries. Both were in a very bad shape but rather than sending them to hospital, they were sent to jail. It was only when their condition deteriorated that they were sent to Kovilpatti general hospital, where Bennicks died on June 22. His father Jayaraj died on June 23.

Questions remain as to whether the doctors in jail were incompetent or whether they did not send the two to hospital in order to protect the police. Breaking the bones of persons in custody is an institutional method allegedly favoured by the Tamil Nadu police. Acting on a complaint against the Tamil Nadu police earlier, the National Human Rights Commission ordered a spot enquiry. The Commission’s investigation team found that 91 undertrial prisoners in Puzhal Central Jail had fractures on different parts of the body such as the forehand, forearm and knee at the time of admission. The team procured the health screening reports of these 91 prisoners at the time of their entry into prison. The matter is pending before the Commission.

The Law Commission of India on the topic of injuries in police custody, in 1984, suggested that in case a man suffers bodily injury or death while in police custody, the court may presume that the injury was caused by the police officer having custody of that person during that period. For some reason, 36 years later, even this has not been followed upon.

By not enacting a proper law against torture, the police have been given a free hand. No quarter can be given to policemen who behave like criminals. The two men in Tamil Nadu died not just because of the torture they suffered but also because of the apathy of the magistrate and doctors at the jail. The scene of the crime and other important facts appear to have been manipulated. Only a full enquiry into the sequence of events, without delay, can reveal the truth.

THE INDIAN EVIDENCE ACT, 1872, PROVIDES THAT A JUDICIAL OFFICER IS SUPPOSED TO DRAW THE PRESUMPTION THAT JUDICIAL AND OFFICIAL ACTS HAVE BEEN PERFORMED IN AN APPROPRIATE MANNER