Kerala Custodial Death Case: Here’s Why Capital Punishment For Cops is a Landmark
In perhaps the first such instance, serving cops have been awarded the highest punishment for the murder of a worker- who was subjected to third degree torture.
In a rare occurrence, two serving police personnel were awarded the death sentence by a CBI court, after hearing the case for over a decade, in Thiruvananthapuram, over the death of a scrap metal shop worker, who the court believes was murdered in custody.
K Udaykumar, a scrap metal shop worker and his friend Suresh Kumar, who had theft cases registered against him, were sitting at a park in the State capital when then constables Jithukumar and Sreekumar arrived. After finding Rs 4000 in Udaykumar’s pocket, the constables drove them down to the Fort police station in the afternoon, reported The Indian Express.
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While presenting its case in court, the prosecution said that Udaykumar was brutally tortured by constables Jithukumar, Sreekumar and KV Soman in a bid to extract a confession that the Rs 4000 was stolen. In court, the deceased’s mother said that the Rs 4000 was money that Udaykumar had saved to buy her clothes for Onam. After enduring torture throughout the day, he was taken to a hospital but died on arrival.
In the post-mortem, it was found that Udaykumar had suffered 22 injuries, including ruptured vessels in his thighs. The report concluded that he had bled to death.
With little progress, the deceased’s mother pleaded with the Kerala High Court for a CBI investigation, which was eventually granted in 2007.
In the chargesheet filed by the CBI, Jithukumar, Sreekumar and KV Soman were booked for murder, while three other cops were charged with destruction of evidence and conspiracy.
While SV Soman died months after retiring on March 10, 2018, the other two were finally convicted for murder yesterday. While sentencing the two, Judge J Nazar had said:
“This is a brutal and dastardly murder by accused (number) one and two… The acts of the accused persons would definitely adversely affect the very institution of the police department… If the faith of the people in the institution is lost, that will affect the public order and law and order, and it is a dangerous situation.”
He went onto argue that the case fell under the “rarest of the rare cases” and life imprisonment for the convicted two would be inadequate. While the defence will appeal to a higher court, the judge’s words do carry a lot of weight considering the impunity with which custodial deaths happen in this country and the consequent lack of accountability. The numbers bear this out.
As per data available with the National Crime Records Bureau, there were nearly 1,022 deaths in police custody between 2000 and 2016.
However, first information reports (FIRs) were filed in only 428 cases, of which the police filed a chargesheet in a mere 234 cases that were taken to court. In this period, only 5% or 24 policemen were convicted of such custodial deaths. What’s worse, in half the cases of custodial deaths, there were no magisterial enquires conducted.
“Police in India will learn that beating suspects to confess is unacceptable only after officers are prosecuted for torture,” says Meenakshi Ganguly, South Asia Director of Human Rights Watch. “Our research shows that too often, the police officers investigating deaths in custody are more concerned about shielding their colleagues than bringing those responsible to justice.”
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However, the problem is a lot more entrenched than just law enforcement officers protecting their own. Our laws and the nation’s highest court have established procedures for law enforcement personnel not just to prevent custodial deaths, but ensure they are held accountable. For example, the statistic that in half the cases of custodial death, there were no magisterial enquires is not just shocking, but goes against the very notion of the rule of law that the police have sworn to uphold.
Following the 1997 DK Basu vs West Bengal case, the Supreme Court laid down some basic guidelines to prevent custodial abuse which have been absorbed into the Code of Criminal Procedure.
Here are some of the guidelines:
1. Police are expected to identify themselves clearly when making an arrest.
2. The police officer carrying out the arrest must prepare a memo of arrest with the date and time of the arrest that is signed by an independent witness and countersigned by the arrested person.
3. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town within a period of 8 to 12 hours after the arrest.
4. The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
5. An entry must be made in the diary at the place of detention regarding the arrest of the person.
6. The arrestee should, where he so request be also examined at the time of his arrest and major and minor injuries, if any present on his /her body, must be recorded at that time.
7. The arrestee should be subjected to medical examination by the trained doctor every 48 hours during his detention.
8. Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record. By law, every person taken into custody must be produced before a magistrate within 24 hours.
9. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
10. A police control room should have information regarding the arrest and the place of custody of the arrestee on a notice board within 12 hours.
In many cases of custodial death, it is found that the police bypass most of these procedures. It isn’t unheard of to learn that the relatives of the deceased have no clue about his/her whereabouts or denied the chance to meet when in custody. Why does this happen? Besides a brazen disregard for the rule of law in specific instances, this is once again a case of poor state capacity.
Speaking to The Better India, former Director General of Police in Nagaland and a key figure in the extradition of notorious gangster Abu Salem from Portugal, Rupin Sharma, agrees that it is a question of poor state capacity (lack of proper training, resource shortage to gather evidence ), which results in cops mistreating criminal suspects in police stations to extract a confession.
“The police/population ratio is abysmal as compared to other countries. Moreover, this ratio takes into account the policemen involved in law and order duties and Armed Battalions who have little or no role in the investigation,” says the former DGP. According to the BPRD, the police to population ratio in India is 180 personnel per 1,00,000 population, which is significantly lower than what the UN recommends (222 per 100,000 population).
“The number of policemen across police stations also perform all sorts of law and order and bandobast duties. As a result, there is hardly any concerted focus on investigation work. This leads to tremendous pressure on investigating officers to ‘perform and deliver’. Under pressure the officers resort to short-cuts, including the use of violence,” says Mr Sharma.
“Moreover, the back-up and ancillary facilities for investigation support are poor. Forensic labs and facilities are not up to the mark—by way of manpower deployed, the specialists therein, the equipment, etc. This results in cases failing due to lack of scientific evidence. Also, because the facilities are few and far away, the police investigators are hesitant to approach them,” he adds.
He also goes onto add that police departments in most states do not have enough funds for supporting forensic investigations. All these facilities cost money, and these aren’t usually budgeted for. Thus, it is left to the resourcefulness of the local station house officer or investigating officer to manage this aspect. Resultantly, he either dithers or adopts other means.
“The police are under tremendous pressure to perform and deliver results. Rather than the judicial process ending in a conviction or acquittal, arrest by police becomes the end of an investigation. Here police succumb to pressure and resort to violence. The arrest of suspects is the major demand of the public and media and not their ultimate prosecution and conviction or acquittal.
Since arrest by police is seen as the ultimate performance indicator by public and media, custodial violence is a necessary corollary,” says Mr Sharma.
There are other reasons he cites including the non-separation of investigation and law and order wings, inadequate training facilities and an “adversarial system”, where the pressure to prove guilt rather than finding out the truth takes precedence. In fact, a key facet of police reforms that many have called for is the separation of investigation wing and law and order wing.
“The investigation of crime is a highly specialised task requiring a lot of patience, expertise, training and clarity about the legal position of the specific offences and subject matter of investigation. It is basically an art of unearthing hidden facts with the purpose of linking up of different pieces of evidence for successful prosecution. The Committee is of the view that investigation requires specialisation and professionalism of a type not yet fully achieved by the police agencies,” says this Law Commission of India report on police reforms.
The report goes onto state that an investigating officer spends on an average only 30% of his time on investigational work, while the rest of his/her time is taken up by other duties. This feed into the idea Mr Sharma spoke of earlier when he referred to the short-cuts officers follow including the use of violence to offset the pressure they are under.
Yes, it is true that erring police personnel need to be held accountable, irrespective of the circumstances they work under.
Having said that, it is also imperative to understand the pressures they operate under as a result of the inability of our political class to institute necessary police reforms that would help them do their job better.
(You can read more about police reforms in India here.)
(Edited by Gayatri Mishra)
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