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Tuticorin: Death In Judicial Custody

There's a lot of things that need to change.
One specifically? Police brutality.
- Colin Kaepernick.

Police authorities across the world are considered as one of the most significant parts of society. They happen to be for protection and peace in the society. The major tasks of the police officials are to maintain the law and order situation in the country. According to Black's Law Dictionary, the term ‘police' is defined as “the governmental organization worked for the welfare of the citizens, to maintain public order and safety and the investigation of the crime.”

But recently on 19th June 2020 in Tuticorin Jayaraj and his son Benicks was taken into custody for interrogation by Sathankulam police officials. They had kept their mobile shop open beyond the authorized hours in spite of the lockdown imposed by the state.

The FIR was filed against Jayaraj and Bennicks under Section 188 IPC i.e. disobedience to order duly promulgated by a public servant, Section 269 IPC i.e. negligent act likely to spread infection of disease that is dangerous to life, Section 294(b) IPC i.e. sings, recites or utters any obscene song, ballad or words, Section 353 IPC i.e. assault or criminal force to deter public servant from discharge of his duty and Section 506 II IPC i.e. punishment for criminal intimidation.

Later on, both were presented before the Judicial Magistrate and were put up in Kovilpatti sub-jail. Subsequently, Jayaraj and Benicks were taken to the hospital on account of fever and chest pain. Benick died immediately after admission while Jayaraj died shortly after that.

The Madras High Court took this matter into their knowledge and the Bench ordered that the postmortem must be conducted by a team of doctors and the whole process must be video graphed. A judicial inquiry was ordered to look into this incident. The Madras High Court also directed the police officials to submit a report on the same. The truth will be revealed only after a thorough judicial inquiry.

Unlawful acts of the Police

Police authorities legal functions are to investigate the case and arrest the offenders in their legal capacity. Police officers need to fulfil certain duties to regulate the law and order in the country and prevent the wrongdoers from committing any crime.

The powers of the police are stated and defined in Chapter XII of the CrPC. Section 154 to 176 of CrPC contains certain provisions that have to be followed by the police authorities while conducting the investigation and the arrest of an accused person. The major role of the police is to uphold the sovereignty and integrity of an individual in society. Yet it is often seen that the police officers sometimes misuse their powers while fulfilling their public duty.

Such inappropriate and illegal acts are considered as police misconduct and lead to obstruction of justice. The powers given to police officers must be used reasonably and for the welfare of the people of the society and shouldn't be misused. Police must act rationally to uphold the constitutional rights of the people. Custodial deaths, illegal and false arrest, fake encounters etc are some examples of misconduct actions of the police.

Custodial Death

Custodial Deaths are a common phenomenon. Every year over 100 deaths occur in police custody. Some happen way before reaching the court of law. Whereas some get reported and some don't. Fenix and Jayraj's case is the former
Custodial violence and misuse of the power given to the police have emerged as a major issue of human rights concern. Taking the criminal into custody and trying to impose punishment is a productive way to decrease the crime rates in society. But nowadays an increase in the death and violence of an accused person in the police custody has been observed. In India, a large number of deaths have taken place in the custody of police but still, the administration has not been seen providing adequate attention to it.

The Constitution of India provides fundamental rights to every citizen of the country which includes the accused also. Some of the most important fundamental rights are Article 14 that talks about equality before the law and equal protection of the law, Article 21 guarantees the protection of life and personal liberty, Article 20(3) i.e. the right to life and personal liberty, and right against self-incrimination. Incidents such as custodial deaths are seen to violate these fundamental rights.

Under the Code of Criminal Procedure, various provisions are provided which aim to safeguard the rights of an accused person but in spite of this, there are continuously growing incidents of custodial deaths in India.

In the case of Tuticorin, witnesses stated that both the father and the son were brutally beaten up by the Sathankulam Police Officials that led to severe injuries. This kind of torture and death in custody raises serious questions about the credibility of the rule of law and administration of the criminal justice system. Under Article 21 it is well-recognized that any person who is lawfully detained by the police is entitled to be treated with dignity and not with torture.

A police officer has the power to arrest any person for the investigation further but has not been allowed to use unnecessary power to extract the information. Thus, it is the duty of the police to arrest a person according to the facts and circumstances of the case and not otherwise.

Legal Analysis of the Tuticorin Incident

The term “arrest” refers to physically restraining the liberty and freedom of a person, where he is taken into custody by an authority that is empowered by the law.

Under section 41(1) police officers are authorized to make an arrest with or without a warrant under CrPC. 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 under section 41(1).

This section was added in the CrPC Amendment Act 2008 to decrease the number of unwanted arrests and to control the misuse of powers by Police officials. Both Jayaraj and Benicks were arrested under section 41(1)(e) of CrPC. They were charged under offences which are bailable and non-cognizable and the offences carry punishment which is less than or extends to seven years.

But as according to the order of the Supreme Courts dated 23.03.2020 stated that the prisoners who have been charged with offences having prison term seven years or less can be released on bail as to prevent overcrowding of prisons in such a time of a pandemic. Also according to the Tamil Nadu Police Standing Order 622 stated that the police officials should not resort to immediate arrest even in cases of cognizable offences. Thus the police officials had the discretionary power to issue a notice under section 41A(1) to both the father and child yet they didn't decide to do as such.

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 also passed lockdown restrictions under the Disaster Management Act, 2005. It is stipulated under Section 51 of the 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.

Insufficient Laws To Deal with Custodial Death

Custodial torture the darker side of human civilisation. But today also even after having various cases of custodial death neither our Constitution nor the penal laws define custodial torture. Under the IPC the only provisions under which custodial torture can be punished is Section 330 and Section 331.

Whereas the application of these two sections is only limited to “grievous injuries” that is defined under Section 320 IPC. it defines grievous injuries as any hurt which endangers life or which causes the sufferer to be during the space of twenty days from the release from prison in severe bodily pain, or unable to follow his ordinary pursuits and limits its applications to certain circumstances like a hurt which endangers life, emasculation etc.

Though there are provisions which deal with torture, for example, Section 49 of the Cr.P.C that states that a person arrested shall not be subjected to more restraint than necessary to prevent his escape or Section 26 of the Evidence Act which makes inadmissible the confession made in the police custody, but however, thede laws still do not satisfy the growing need of specific legislation for torture.

What could have been done?

Section 50 of CrPC states that if any person is arrested without a warrant then it is the duty of the police officer to inform about the reason for his arrest and his right to bail. Section 436 CrPC states that if a person is taken into custody without a warrant under bailable offence and is prepared to give bail, then such a person should be released on bail.

Whereas in this 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 done.

As per the Prisons Act 1894, the convicts on admission need to be examined by the medical officer and the bodily injuries should be recorded. Moreover, it was alleged that the victims endured severe rectum pain with bleeding and their knees were hit badly. It is still not known whether the victims were medically examined or not before being brought in the court. If so, it again brings up a question as to why both the victims were not provided with any medical treatment?

In the case of Tuticorin, negligent supervision by the administration has led to the death of two innocent people. The police officials and other authorities carry the liability as they failed to fulfil their duties effectively. It is extremely important for the police officers to know their powers and their limitations.

It is permitted by the law to interrogate an accused person but at the same time, it is also not stated anywhere in the law that the police have to take the law into their hands and adopt illegal methods to investigate. In spite of the plethora of laws, the number of custodial deaths in India is proliferating and requires immediate attention.

Written By: Chetna Alagh

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Authentication No: AG30671659847-3-720

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