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Tamilnadu Custodial Deaths: When Police Turned Into A Vicious Brute Force

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What has happened in Tuticorin, Tamilnadu, India is worse than the Nirbhaya case that concluded with the hanging of four persons in Delhi recently, writes Justice Markandey Katju.

A man P. Jayaraj and his son Felix in Sathankulam town of Tuticorin district were arrested by policemen allegedly for keeping their mobile accessory shop open during the lock-down. They were then taken to the police station and brutally assaulted, with the personnel thrusting rods or sticks into their private parts. later, it was found the two accused had been profusely bleeding from their rectum, needing change of clothes thrice. They died later.

In the Nirbhaya case too, some non-officials thirsted a rod into the private parts of the men. But in the case in question, it was done by policemen whose duty was to uphold the law and protect citizens. In short, the rakshaks turned into bhakshaks.

It must be mentioned here that the instances of custodial deaths are mounting in India country as noted by the India’s Supreme Court in its landmark decision in DK Basu vs. State of West Bengal case in 1996. Hence, Section 176 of Criminal Procedure Code was amended and a special procedure was developed to investigate custodial deaths.

For ordinary crimes, investigation is carried out by the police. But for custodial deaths, Section 176 provides that the investigation is to be carried out by a judicial magistrate. The purpose of the provision is obvious: the police may not carry out a fair investigation against their colleague.

However, there is nothing in Section 176 which says that policemen accused of custodial deaths cannot be arrested before an inquiry by the magistrate is completed. On the other hand, in the cases of murder, police arrest the accused immediately and does not wait to do so till the investigation is complete.

It is also surprising that the accused policemen have only been suspended. They should have been arrested as was done to the killers of George Floyd in the US. The inquiry and trial should thereafter be completed expeditiously, and if the accused are found guilty, they should be given a harsh, exemplary punishment. In this way, the policemen throughout India would know that they cannot continue behaving as they were during the British Raj.

Here, it is pertinent to mention that in 2011, in the Prakash Kadam vs. Ramprasad Vishwanath Gupt case, India’s Supreme Court held that policemen found guilty of fake encounter should be given death penalty, a ‘rarest of rare’ verdict.

The court had observed, “policemen are persons who are supposed to uphold the law. In our opinion, if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen, [then a] harsher punishment should be given to them because they do an act totally contrary to their duties.”

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