John Adams once quoted, “a government of laws, and not of men.” This understandably means that in a society that considers itself free, the government has to rule according to laws and principles, not their whims and fancies and they must be held accountable for their actions. This is true of the rule of law too, which ensures justice, fairness and equality before law. Naturally so, the rule of law also demands accountability from the police force of a country.
However, the recent Thoothukudi case of the custodial deaths of father-son duo Jayaraj and Bennicks on June 23rd shook the entire country. Their deaths happened after about a week of their arrest, by the excessive barbaric torture that was committed on them under police custody. They were arrested for allegedly violating the Covid-19 lockdown guidelines by opening their mobile shop beyond curfew timings. Post their deaths, a lot of outrage happened, with the entire country mourning for their deaths and a lot of debates took place regarding police brutality and rising death rates at the hands of the police force.
Deaths in police custody may happen due to natural causes, attacks by other inmates, etc. But, when the alleged culprit is the police force itself and there erupts a great demand for holding the police accountable, it is imperative to know the legal provision already in place which kicks in whenever any custodial death happens in India. When such deaths happen, completely impartial investigation by the police is a very weak possibility, because they are asked to dig out the facts themselves. Hence, they might be biased in favour of their colleagues, or worse, might themselves be involved in the case. One of the principles of natural justice state that “you cannot be a judge in your own cause”, the essence of which can be used to highlight the problems which would arise if the police themselves are made to investigate a case against their own force. Hence, to curb such a situation, Section 176 (1A) of the Code of Criminal Procedure, 1973 was added in 2005 as a safeguard against the custodial deaths which happened in India.
This provision directs the district magistrate to inquire into the death or disappearance of any person and the rape of a woman in the custody of the police, in addition to the investigation already being held by the police. This is a parallel judicial mechanism which ensures that the investigating authority is impartial in such cases. A plain reading of the provision would indicate that it is mandatory, due to the usage of the word “shall”, which means that inquiry in such cases is not discretionary but has to definitely be conducted by the magistrate. This shows that it was the legislative intent to disallow any kind of loose interpretation of the provision. This section also widens the purview of custody by extending it to even judicial custody and not just limiting it to police custody. This has been clarified in the case of P. Pugalenthi v. State by the Madras High Court in 2014.
By mandating an impartial investigation, the provision ensures that evidence is not suppressed or tampered with and also allows authorities to compare the police investigation report with the report of the inquiry held by the District Magistrate, hence, allowing for the truth of the matter to surface without giving any undue advantage to the police. This is a great example of the doctrine of separation of powers and the resultant checks and balances between the three organs of the government, namely, the legislative, executive and the judiciary coming to fruition. It allows for the judicial authority i.e. the magistrate to check the working of the executive i.e. the police to see if any kind of malpractice has been committed by the latter, resulting in the death of the victims under police custody.
This is a powerful provision. But it is well said, “law is, as law does”. It is one thing to formally bring a law into being, but what has to be ensured is its actual implementation, without which black letter law becomes futile. A relevant instance to cite here is a writ petition filed in the Supreme Court by activist Suhas Chakma in January 2020. In his petition, Chakma had rightfully highlighted the non-implementation of section 176 (1A) which can be incredibly useful in ensuring accountability by the police force if put into proper usage. But till date, it has not been used at all which has resulted in shielding the wrongs committed by the police or prison officials, namely, murders and rapes of the arrested people. The Supreme Court, in this case, had issued a notice to the Center and State authorities to look into the matter and ensure that the relevant section is fully and properly implemented by probing the judiciary to enquire into such cases of alleged custodial deaths. The data on this matter is horrific, as pointed out by the petitioner in his petition.
The National Crime Records Bureau reports from the years 2005-2017 have reported a high number of custodial deaths in this time period, i.e. 1303 deaths. However, shockingly, the National Human Rights Commission has recorded complaints far in excess of what the NCRB reports mention, i.e. 24,043 custodial deaths from years 2005-2019. Moreover, due to unawareness and non-implementation of Section 176 (1A) of the CrPC, only in 20% cases of custodial deaths without judicial remand and 21% cases of deaths after judicial remand invoked the provision. Also, it is essential to hold the lower judiciary accountable too, in cases where prisoners die within the custody of police after keeping them in judicial remand since it becomes their responsibility, too. It is appalling how a mandatory provision in the law is invoked only in 20-21% of cases of custodial deaths. This shows that merely giving formal rights to citizens does not really serve the purpose unless actions are taken place in a substantive manner and until and unless that does not happen, accountability and actual equality will not prevail.
Such non-implementation of important protective measures singlehandedly destroys the legislative intent of holding the police force accountable and ensuring their professional conduct. In the case of Jayaraj and Bennicks too, only on the interference of the High Court of Madras on June 26th, was the provision of 176 (1A) of CrPC invoked. Neither did the concerned District Magistrate invoke his powers (which are mandatory under the provision) to look into the matter, nor did the police take any action to request the magistrate to initiate an inquiry. In fact, it was reported that three police investigating officers also allegedly tried to obstruct the enquiry being committed by the District Magistrate, post orders from the Madras High Court, after which an action was taken against them by the latter authority.
Black letter law, be it laws laid down by the legislature such as the impugned section or even judgements like P. Pugalenthi passed by the judiciary are rendered useless if proper implementation does not take place. Recent developments in the present case show that strict action has been taken against five police officers, who have been arrested and charged for murder under Section 302 of the Indian Penal Code, 1860 for the murder of the father-son duo. This is definitely a victory with respect to the case, but looking at the larger perspective, this is just one amongst thousands of other unfortunate cases where an inquiry was never done and the culprits were not held accountable. One cannot help but wonder, were these actions taken against the culprits because of the heavy outrage amongst people on social media with trending hashtags? Or would the case have had the same outcome had it not come into the limelight? Statistics show otherwise. Several complaints did not even make it to the reports provided by the National Crime Records Bureau during all these years. What about those cases? Custodial deaths, rapes and police brutality is a direct result of how loosely all these incidents have been tackled till date.
The police force has time and again exceeded their powers and engaged in gross human rights violations, resulting in immunity being granted to them by non-implementation of such important legislations which are requisite to a democratic nation and the upholding of the rule of law. It can only be hoped that the actions taken by the authorities in the Jayaraj-Bennicks case will unnerve the police force from engaging in murders and rapes of prisoners, but only time will tell how well the legislation will be used in future unfortunate cases of custodial violence.
*This article was part of the Legal Arena Article Writing Competition organised by The Law Culture. It claimed the Fourth Position.
Preferred Citation: Srivastava, S., “CUSTODIAL DEATH: JAYARAJ AND BENNICKS CASE | SECTION 176 CrPC AND RELEVANT DATA” The Law Culture (2020)
Smarnika is a fourth year BA. LL.B. student at O.P. Jindal Global University, situated in Sonipat, Haryana.
In her early school days itself, she had developed the habit of reading books and equally enjoyed studying the assigned course material. Her hobbies include singing, drawing, writing poems, playing the keyboard, and she occasionally loves to pose in front of the camera. She has a very keen interest in feminist studies, so much so that now she views the world through a critical lens and loves to analyse movies and web-series. She wants to pursue a job in the corporate legal world, but is equally passionate about making a place in the academia.