This article is written by Sara Suresh, a student from Symbiosis Law School, Pune. In this article, the author explains the recent case of brutality and death in judicial custody and how law reacts to it.

Introduction

On 19th June 2020 Jayaraj and his son Benicks were picked up for interrogation by Sathankulam police officers for keeping their mobile accessories shop ajar beyond authorized hours in spite of the lockdown imposed. The First Information Report was recorded against Jayaraj and Bennicks under Section 188 (Disobedience to order duly promulgated by public servant), 269 (negligent act likely to spread infection of disease dangerous to life), 294(b) (sings, recites or utters any obscene song, ballad or words), 353 (Assault or criminal force to deter public servant from discharge of his duty) and 506 II (Punishment for criminal intimidation) of Indian Penal Code, 1860. Later they were presented before the Judicial Magistrate and were put up in Kovilpatti sub jail under Judicial Custody. Subsequently, Jayaraj and Benicks were taken to hospital on account of fever and chest pain. Bennicks died immediately after admission while Jayaraj died shortly after that.

The Madras High Court took suo-moto cognizance of this case and the Madurai Bench ordered that the postmortem of the bodies should be conducted by a team comprising of three doctors and the entire process must be video graphed. The concerned police offers were suspended and the staffs were transferred. A judicial probe was ordered to look into this tragic incident and the Madras High Court has directed the police officials to submit a report on the same. Truth will be revealed only after a thorough judicial probe.

Legal Analysis of the Incident

Firstly, it is important to understand what arrest is and why was it made under the present case. The term “arrest” has not been defined either under Criminal Procedure Code, 1973 or under Indian Penal Code, 1860. Fundamentally arrest refers to physically restraining the liberty and freedom of a person, where he is taken into custody by an authority empowered by law. A police officer is authorized to make arrest with or without warrant under CrPC.  

Principally, it is true that Criminal Procedure Code confers wide discretionary and absolute powers to the police officers to make an arrest. U/s 41(1) CrPC, a police officer is enabled to make an arrest without a warrant. Section 41-A was inserted vide CrPC Amendment Act 2008 in order to protect innocent individuals from getting harassed and to curb the misuse of powers by Police Officers and to avoid unnecessary arrest or threat to arrest.  Section 41-A states that a police officer can issue a notice to the person against whom a reasonable complaint is made if his arrest is not required u/s 41(1).  It was held by the Supreme Court in Arnesh Kumar v. State of Bihar (2014) 8 SCC 273 that, 

• A police officer cannot make an arrest u/s 41(1) only upon the satisfaction that a person has committed an offence. The police should also be satisfied that the arrest is necessary to prevent such person from committing further offence or for investigation or to prevent the person from tampering with the evidence or to prevent him from threatening or inducing the witness so as to dissuade him from disclosing facts in Court or to a police officer or his presence in the court cannot be ensured unless he is arrested. Before making an arrest u/s 41(1), the police officer need to question himself whether the arrest is required and what object will it serve.
• The Police Officer should not automatically arrest in an offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine unless they are satisfied about the necessity of arrest. 
• The Magistrate needs to be satisfied that the arrest made by the police officer meet the requirements u/s 41(1) and if he is not, he is duty bound not to sanction his further detention and should release the accused. The magistrate should not authorize the detention casually and mechanically.
• In the event of failure to comply with the directions, the Police Officer and the Judicial Magistrate should be subjected to departmental action.

Jayaraj and Benicks were arrested under section 41(1)(e) CrPC for obstructing a police officer from executing his duty. They were charged under offences which are bailable and non-cognizable and the offences carry punishment which is less than or extend to seven years. Police officers cannot make an arrest just because they possess the power to do so. In the present case, a serious crime was not committed and the situation did not demand any immediate need of arrest. The Apex Court on its order dated 23.03.2020 said that the prisoners who has been convicted or charged with offences having prison term seven years or less can be released on bail or parole in order to prevent overcrowding of prisons. 

But the Judicial magistrate, in this case, has failed to make a judicial scrutiny as to the fact that whether the arrest is imminently needed and has passed the order of detention in a cavalier manner. The police officials had the discretionary power to issue notice u/s 41A(1) to both the father and son but they didn’t choose to do so. Furthermore, the Tamil Nadu Police standing Order 622 states that the police officer should not resort to immediate arrest even in cases of cognizable offence.

Secondly, amidst the pandemic the states have passed restrictions under both Disaster Management Act, 2005 and Epidemic Diseases Act, 1897. The Tamil Nadu State Disaster Management Authority has passed lockdown restrictions under Disaster Management Act, 2005. It is stipulated u/s 51 of the DM Act that whoever fails to comply with the directions of the Government or obstructs any police officer from discharging his duty shall be subject to imprisonment for a term which may even extend to two years and one year respectively. 

Furthermore, the Act also states that the court has no authority to take cognizance of the offence act except on a complaint made by specified authorities. Section 60 of the act states that the court can take cognizance only on a complaint made by

(a) the National Authority, the State Authority, the Central Government, the District Authority or any other Authority or Officer authorized in this behalf by that Authority or Government as the case may be or

(b) any person who has given notice of at least 30 days in the manner prescribed, of the alleged offence and his/her intention to make a complaint to the National Authority, the State Authority, the Central Government, the District Authority or any other Authority or Officer authorized as aforesaid.

It should be noticed that section 60 of the DM Act didn’t mention that “any police officer” is authorized. Moreover, the MHA has issued a notice stating that the violators of the lockdown will be punished under the provisions of both Disaster Management Act, 2005 and Indian Penal Code, 1860. This ambiguity that exists in the DM Act should be addressed. Moreover, the Epidemic Diseases Act, 1897 proscribes penalty for defying the rules or order made under the Act in accordance with section 188 of IPC, which again prescribes punishment which may extend to one month or six months.

Thirdly, witnesses stated that Jayaraj and Benicks were brutally thrashed by the Sathankulam Police Officials and they sustained severe injuries. Police torture and death in custody raises serious questions about the credibility of the rule of law and administration of the criminal justice system. It is a well recognized right under Article 21 that any person who is lawfully detained by the police is entitled to be treated with dignity and respect and any arrest or detention doesn’t mean that any person could be tortured or beaten up. It was held by the Supreme Court back in 2012 that the states should organize special strategies to prevent and punish brutality by police methodology. It is held in innumerable decisions that monetary compensation would be provided to people who were ill-treated by the police. But it is time for the law makers to think and act upon the question “Would it suffice to prevent such incidents?” High amount of compensation should not be the only way to deal with this issue and it should not act as a means to silence the victims and his family.

India signed the “United Nations Convention against torture” in 1997 and the government accepted the recommendations of UN to ratify the convention. But even after 23 years of signing the convention, we do not have a specific enactment to ratify the convention. In 2017, “Prevention of Torture Bill” was drafted and introduced in the Parliament in consonance with the recommendations of Law Commission to ratify the convention and to enact legislation to criminalize torture. But the Government has not passed the bill and no further steps were taken.  The National Human Rights Commission has passed several recommendations to deal with police torture and custodial death. But the Commission do not have absolute legal stance in India as their recommendations are not binding on the authorities.

Inconsistencies in the case: What should have been done?

Section 50 of CrPC states that it is the duty of the police officer to inform any person arrested without warrant about the grounds of his arrest and his right to bail. U/s 436 CrPC if any person is arrested without warrant under bailable offence and is prepared to give bail, such person should be released on bail. It was held by the Supreme Court that a person accused of bailable offence has a right to be released on bail after furnishing the required bond or surety and it does not depend on the discretion of the judges or the police officer. Bail is a right and Jail is an exception. As stated earlier, in the present case both the victims were charged under bailable offence. Either the police officer or the Judicial Magistrate should have granted bail considering the circumstances of the case. But, the same wasn’t bestowed by the court thereby creating a huge void.

Section 54 CrPC confers right upon the arrested person to have himself medically examined in order to prove his innocence or to show that he was subjected to torture. In D.D.Basu v. State of West Bengal 1997 1 SCC 416 it was held that the arrested person should be subjected to medical examination every 48 hours. It is the duty of the magistrate to enquire the arrested person whether they have any complaints against torture in Police custody.

In the case, it was alleged that the victims suffered severe rectum pain and were profusely bleeding from their rectum and their knees were hit so badly. It is still unknown that whether the victims were medically examined before being produced in the court. If so, it again raises a question as to why both the victims were not provided with medical treatment. The death of the victims could have been avoided,

• if the medical practitioner has provided them with treatment and has stated the same in the medical certificate and
• if the magistrate had observed the physical state of the victims and enquired the victims regarding the same.

According to the Prisons Act 1894, the convicts on admission need to be examined by the medical officer and the wounds on his body should be recorded. It is still unknown whether the victims under this case were medically examined. The jail authorities state that Benicks was bleeding when he was brought to the prison. But it is still undisclosed that whether the same was reported. If the victims were medically examined, there lies another question as to why were the internal bleeding left unnoticed and why were they not taken to the hospital.

In the existing case, the police officials and other authorities such as Judicial Magistrate, Medical examination officer and the jail authorities carry a liability in failing to discharge the duties effectively. It is extremely important for the police officers to know their powers and its limitation and should not act as perpetrator of torture. Additionally, the criminal justice system is comprised of many authorities who need to be diligent and reasonable. In spite of several amendments and allegations, the number of custodial deaths in India is proliferating and alarming, which needs attention. Negligent supervision and administration in the present case has led to the death of two innocent people! A proper mechanism to deal with the issue is the need of the hour.

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