India: Brutal Custodial Torture

Urgent Appeal Case: AHRC-UAC-047-2012

Send an Appeal Letter

21 March 2012
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India: Brutal Custodial Torture By Harora And Ashoknagar Police In West Bengal

Issues: Torture; Impunity; Illegal Arrest And Detention; Rule Of Law
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information from Banglar Manabadhikar Suraksha Mancha (MASUM) concerning another case of brutal custodial torture of Mr. Samad Mondal. It is reported that the police from Haroa Police Station arrested the victim from a Gopalpur market on 20 January 2012. It is alleged that the police tortured the victim in custody and later produced him in court, from where he was handed over to Ashoknagar Police Station. The victim alleges that the police have fabricated both cases against him under non-bailable offences of the Narcotic Drugs Psychotropic Substances Act, 1985 and for other offences under the Indian Penal Code, 1860 like, lurking house trespass and theft. It is reported that Samad is still in custody.

CASE NARRATIVE:

A fact-finding undertaken by MASUM concerning the case has revealed the following details. On 20 January 2012 at about 11 am, while Samad was returning home from the Gopalpur Market, two police officers in civilian dress reportedly from Haroa Police Station, reached there on motorbike, abused him with filthy languages, and later took him to the Haroa Police Station. Samad is a guard at a local fishery.

Upon receipt of information concerning Samad's custody, his wife Halima Bibi, rushed to the police station. The members from the local Gram Panchayat, Mr. Mahitosh Das and Mr. Jafar Mondal, accompanied Halima. When they met Samad at the police station Samad reportedly informed them that the police had brutally assaulted him inside the lockup. Samad also informed them that he was forced to confess having committed dacoity.

Samad also informed that he could identify at least one policeman who took him to the station and tortured him at the station. He said the name of the officer who assaulted him is Mr. Dillur Rahman. It is reported that the victim was later implicated in a criminal case registered as Crime 11/2012 dated 22 January 2012 of Haroa Police Station for offences punishable under Narcotic Drugs Psychotropic Substances Act, 1985.

On 23 January 2012 Mr. Chand Muhammed, Sub-Inspector stationed at Ashoknagar Police Station made a written application before the Chief Judicial Majistrate, Barasat for getting custody of Samad. This, the officer alleged is to interrogate Samad in connection with Crime 28/2011 dated 21 January 2011 registered under section 457 and 380 of the Penal Code. The court allowed the petition. It is alleged that once again the police tortured Samad in police custody.

The circumstances under which the police arrested Samad are suspicious. That the police detained him in custody first and then registered a case also indicates the practice that police arrest persons even before a case is registered and based on forced confessions charge them with cases. Often the police use such tactic to dispose off long pending cases.

ADDITIONAL INFORMATION:

This is not the first case that the AHRC and MASUM have reported concerning custodial violence perpetuated by the police stations in the district of North 24 pargans, West Bengal. Former Urgent Appeals, AHRC-UAC-030-2012, AHRC-UAC-045-2012 issued on 22 February 2012,15 March 2012 speaks about similar facts from the very same district.

The practice of torture is widespread in India. Unchallenged and unopposed, it has become a normal and legitimate practice for the law enforcement agencies in the country. Torture in custody is reported regularly in India and the instances of custodial torture and other forms of violence are at an alarming rate in the country. Reports allege that between 2001-10 more than 14,231 persons have died in police and judicial custody in the country. This means that during the past ten years on an average four persons dies every day while in custody.

In a democratic society, the role of the police is to protect the rights of the citizens. However, in India it is well known that the police systematically abuse their authority and employ custodial torture as part of their investigation and fabricates false cases against persons as they wish. The poor, the deprived, women and children and political activists are mostly the victims of police violence.

The barbarity of incarceration is validated by the popular retributive-deterrent philosophy, which is the current sentencing norm in many criminal jurisdictions and India is no exception to this. Fabrication of false cases, custodial violence, including torture and death in police/judicial custody strikes a blow at the rule of law, which demands that the powers of the executive should not only derive from law but also that the same should be limited by law. In this scenario, the lacking of a proper law that criminalises torture creates a congenial environment for the law enforcement agencies to continue with their criminal acts with impunity.

Extraction of confession by use of force is often considered as a legitimate investigative procedure in the country. In most cases, investigation of a crime begins and ends with a confession. Even as of today, the country does not have a policy of zero tolerance to custodial torture. Police officers complain that they do not know what criminal investigation is other than extracting confession by force. So much so, the practice of torture is accepted as legitimate police procedure. There has never been an attempt by the government to educate the police or the public that torture is not only illegal, but is in fact a crime against humanity, that has the viral potential to undermine the very concept of justice and thus a democratic state.

Section 54 of the Code of the Criminal Procedure, 1973 that mandates examination of an arrested person by a medical officer is essential which has also not complied in this case. Samad was denied of medical treatment, which is nothing but the denial of the right to life guaranteed under Article 21 of the Constitution of India, and the legal rules lay down of the Supreme Court of India.

The mandatory requirements prescribed in the Cr.P.C concerning arrest, medical examination and also the rules issued by the Supreme Court in the D.K.Basu vs State of west Bengal 1997 (AIR) SC 610 are not been complied by the police officers in this case.

Section 120B(1) of the Penal Code mandates; punishment for criminal conspiracy - whoever is a party to criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall where no express provision is made in this code for the punishment of such conspiracy, be punished in the same manner as if he had abetted such offence.

Section 325 of the Code mandates; punishment by way of imprisonment for a term of seven years to a person who voluntarily causes grievous hurt. Section 34 of the code mandates: Acts done by several persons in furtherance of common intention. -Whoever a criminal act is done by several persons in furtherance of common intention of all each of such persons is liable for that act in the same manner as if it were done by him alone.

Article 39A of the Constitution mandates equal justice and free legal aid. The state shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall in particular provide free legal aid by suitable legislations or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Under section 18(3) of the protection of Human Rights Act, 1993 the National Human Rights Commission is mandated to advance the cause of compensatory justice to the victims of torture.

Article 5 of the Universal Declaration of Human Rights (UDHR) incorporated the right to protection against torture and the same has been sought to be achieved through declaration of the Fifth United Nations Congress held in 1975. UN Convention against torture provides for redress and compensation to the victim. Article 14 of the convention categorically emphasizes that every state party to the convention must ensure that the tortured victim is provided fair and adequate compensation and rehabilitation. The right to be free from arbitrary detention is a fundamental right. Even though the India has not rectified the convention, India torture is a subject of ius cojens that mandates the state to ensure that the torture is prevented in all jurisdictions.

The Supreme Court in Sunil Batra vs. Delhi Administration reported in 1978 (4) Supreme Court Cases 494 has ruled that prohibition against torture is absolute in India. The Supreme Court did not find itself handicapped by the absence of specific provisions against torture in the constitution and gathered support from Article 14 and 19 in holding against the permissibility of torture vis-à-vis persons suspected and accused of crime. In Khatri vs. State of Bihar reported in 1981 All India Reporter (Supreme Court) p. 928 is a case where the Court said how cruel and in-human treatment to the prisoners insolates the sprit of constitution and human value as well as Article 21 as far as persons in custody is concerned. The court had held that these rights are available even for prisoners.

In A. Nallassivan vs. State of Tamil Nadu and others reported in 1995 Criminal Law Journal 2754 (Madras) 90 women and 28 children from a village were detained in the office of forest range officer for a night. The court held the detention is illegal, offending fundamental rights and directed enquiry by the Central Bureau of Investigation (CBI) India. The court further added that if a police officer acted contrary to the proviso to Section 160(1) of the Cr.P.C, such deviation should be reason for prompt punishment, since the policemen may not become a law unto themselves while expecting others to obey the law. The supreme court of India in Aravinder Singh Bagga vs. State of Utter Pradesh reported in All India Reporter 1994 laid down that the state shall pay compensation to all persons illegally detained and humiliated for no fault of theirs.

The victim in this case is still in prison and denied of bail, while bail is the rule and committal to jail an exception. In the words of Justice V.R. Krishna Iyar "…the issue is one of liberty, justice, public safety, and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process." The Supreme Court of India in Moti Ram vs. State of MP Supreme Court Cases p. 47, held that the consequences of pretrial detention are grave. Defendants presumed innocent are subjected to psychological and physical deprivation in life during their time in jail. Conditions during pretrial detention in India are sometimes worse than those imposed upon convicted defendants. The jailed defendants loose their job, if the person has one, and is prevented from contributing to the preparation of his defence. Equally important, is the burden of rescuing the person from detention falls heavily on innocent members of his family.

Had the police in West Bengal been operating in compliance with the law, incidents as reported in this case would not have happened. It shows that discipline and commitment to duty is not ensured within the rank and file in the force. Violence by the police against the poor and other forms of corruption and crimes committed by the police with impunity is a threat to the the rule of law. Such a force is a threat to the entire country.

SUGGESTED ACTION:
Please write to the authorities listed below requesting their urgent intervention in this case. The AHRC is also writing a separate letter to the UN Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment calling for an intervention in this case.

To support this appeal, please click here:

SAMPLE LETTER:

Dear __________

INDIA: Kindly investigate the case of brutal custodial torture by Haroa and Ashoknagar police in West Bengal

Name of the victim:
1. Mr. Samad Mondal, aged about 40 years, son of late Malik Mondal residing at Pukria village, North 24 Parganas district, West Bengal, India
Names of alleged perpetrators:
1. Mr. Dillur Rahman of Haroa police station
2. Mr. Chand Mohammed of Ashoknagar police station and
3. Unidentified police officers who were on duty on 20 January 2012 at Haroa police station and on 23 January 2012 at Ashoknagar police station.
Date of incident: 20 and 23 January 2012
Place of incident: Near Gopalpur market, and at Haroa and Ashoknagar police stations, North 24 Parganas district, West Bengal

I am writing to express my concern regarding yet another case of brutal torture committed by officers from Harora and Ashoknagar Police Stations. In this case the victim is a poor man working as a watchman at a local fishery.

A fact-finding undertaken by MASUM concerning the case has revealed the following details. On 20 January 2012 at about 11 am, while Samad was returning home from the Gopalpur Market, two police officers in civilian dress reportedly from Haroa Police Station, reached there on motorbike, abused him with filthy languages, and later took him to the Haroa Police Station. Samad is a guard at a local fishery.

Upon receipt of information concerning Samad's custody, his wife Halima Bibi, rushed to the police station. The members from the local Gram Panchayat, Mr. Mahitosh Das and Mr. Jafar Mondal, accompanied Halima. When they met Samad at the police station Samad reportedly informed them that the police had brutally assaulted him inside the lockup. Samad also informed them that he was forced to confess having committed dacoity.

Samad also informed that he could identify at least one policeman who took him to the station and tortured him at the station. He said the name of the officer who assaulted him is Mr. Dillur Rahman. It is reported that the victim was later implicated in a criminal case registered as Crime 11/2012 dated 22 January 2012 of Haroa Police Station for offences punishable under Narcotic Drugs Psychotropic Substances Act, 1985.

On 23 January 2012 Mr. Chand Mohammed, Sub-Inspector stationed at Ashoknagar Police Station made a written application before the Chief Judicial Magistrate, Barasat for getting custody of Samad. This, the officer alleged is to interrogate Samad in connection with Crime 28/2011 dated 21 January 2011 registered under section 457 and 380 of the Penal Code. The court allowed the petition. It is alleged that once again the police tortured Samad in police custody.

The circumstances under which the police arrested Samad are suspicious. That the police detained him in custody first and then registered a case also indicates the practice that police arrest persons even before a case is registered and based on forced confessions charge them with cases. Often the police use such tactic to dispose off long pending cases.

This is not the first case that the AHRC and MASUM have reported concerning custodial violence perpetuated by the police stations in the district of North 24 pargans, West Bengal. Former Urgent Appeals, AHRC-UAC-030-2012, AHRC-UAC-045-2012 issued on 22 February 2012,15 March 2012 speaks about similar facts from the very same district.

The practice of torture is widespread in India. Unchallenged and unopposed, it has become a normal and legitimate practice for the law enforcement agencies in the country. Torture in custody is reported regularly in India and the instances of custodial torture and other forms of violence are at an alarming rate in the country. Reports allege that between 2001-10 more than 14,231 persons have died in police and judicial custody in the country. This means that during the past ten years on an average four persons dies every day while in custody.

In a democratic society, the role of the police is to protect the rights of the citizens. However, in India it is well known that the police systematically abuse their authority and employ custodial torture as part of their investigation and fabricates false cases against persons as they wish. The poor, the deprived, women and children and political activists are mostly the victims of police violence.

The barbarity of incarceration is validated by the popular retributive-deterrent philosophy, which is the current sentencing norm in many criminal jurisdictions and India is no exception to this. Fabrication of false cases, custodial violence, including torture and death in police/judicial custody strikes a blow at the rule of law, which demands that the powers of the executive should not only derive from law but also that the same should be limited by law. In this scenario, the lacking of a proper law that criminalises torture creates a congenial environment for the law enforcement agencies to continue with their criminal acts with impunity.

Extraction of confession by use of force is often considered as a legitimate investigative procedure in the country. In most cases, investigation of a crime begins and ends with a confession. Even as of today, the country does not have a policy of zero tolerance to custodial torture. Police officers complain that they do not know what criminal investigation is other than extracting confession by force. So much so, the practice of torture is accepted as legitimate police procedure. There has never been an attempt by the government to educate the police or the public that torture is not only illegal, but is in fact a crime against humanity, that has the viral potential to undermine the very concept of justice and thus a democratic state.

Section 54 of the Code of the Criminal Procedure, 1973 that mandates examination of an arrested person by a medical officer is essential which has also not complied in this case. Samad was denied of medical treatment, which is nothing but the denial of the right to life guaranteed under Article 21 of the Constitution of India, and the legal rules laid down of the Supreme Court of India.

The mandatory requirements prescribed in the Cr.P.C concerning arrest, medical examination and also the rules issued by the Supreme Court in the D.K.Basu vs State of west Bengal 1997 (AIR) SC 610 are not been complied by the police officers in this case.

Section 120B(1) of the Penal Code mandates; punishment for criminal conspiracy - whoever is a party to criminal conspiracy to commit an offence punishable with death, imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall where no express provision is made in this code for the punishment of such conspiracy, be punished in the same manner as if he had abetted such offence.

Section 325 of the Code mandates; punishment by way of imprisonment for a term of seven years to a person who voluntarily causes grievous hurt. Section 34 of the code mandates: Acts done by several persons in furtherance of common intention. -Whoever a criminal act is done by several persons in furtherance of common intention of all each of such persons is liable for that act in the same manner as if it were done by him alone.

Article 39A of the Constitution mandates equal justice and free legal aid. The state shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall in particular provide free legal aid by suitable legislations or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities. Under section 18(3) of the protection of Human Rights Act, 1993 the National Human Rights Commission is mandated to advance the cause of compensatory justice to the victims of torture.

Article 5 of the Universal Declaration of Human Rights (UDHR) incorporated the right to protection against torture and the same has been sought to be achieved through declaration of the Fifth United Nations Congress held in 1975. UN Convention against torture provides for redress and compensation to the victim. Article 14 of the convention categorically emphasizes that every state party to the convention must ensure that the tortured victim is provided fair and adequate compensation and rehabilitation. The right to be free from arbitrary detention is a fundamental right. Even though the India has not rectified the convention, India torture is a subject of ius cojens that mandates the state to ensure that the torture is prevented in all jurisdictions.

The Supreme Court in Sunil Batra vs. Delhi Administration reported in 1978 (4) Supreme Court Cases 494 has ruled that prohibition against torture is absolute in India. The Supreme Court did not find itself handicapped by the absence of specific provisions against torture in the constitution and gathered support from Article 14 and 19 in holding against the permissibility of torture vis-à-vis persons suspected and accused of crime. In Khatri vs. State of Bihar reported in 1981 All India Reporter (Supreme Court) p. 928 is a case where the Court said how cruel and in-human treatment to the prisoners insolates the sprit of constitution and human value as well as Article 21 as far as persons in custody is concerned. The court had held that these rights are available even for prisoners.

In A. Nallassivan vs. State of Tamil Nadu and others reported in 1995 Criminal Law Journal 2754 (Madras) 90 women and 28 children from a village were detained in the office of forest range officer for a night. The court held the detention is illegal, offending fundamental rights and directed enquiry by the Central Bureau of Investigation (CBI) India. The court further added that if a police officer acted contrary to the proviso to Section 160(1) of the Cr.P.C, such deviation should be reason for prompt punishment, since the policemen may not become a law unto themselves while expecting others to obey the law. The supreme court of India in Aravinder Singh Bagga vs. State of Utter Pradesh reported in All India Reporter 1994 laid down that the state shall pay compensation to all persons illegally detained and humiliated for no fault of theirs.

The victim in this case is still in prison and denied of bail, while bail is the rule and committal to jail an exception. In the words of Justice V.R. Krishna Iyar "…the issue is one of liberty, justice, public safety, and burden of public treasury all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process." The Supreme Court of India in Moti Ram vs. State of MP Supreme Court Cases p. 47, held that the consequences of pretrial detention are grave. Defendants presumed innocent are subjected to psychological and physical deprivation in life during their time in jail. Conditions during pretrial detention in India are sometimes worse than those imposed upon convicted defendants. The jailed defendants loose their job, if the person has one, and is prevented from contributing to the preparation of his defense. Equally important, is the burden of rescuing the person from detention falls heavily on innocent members of his family.

Had the police in West Bengal been operating in compliance with the law, incidents as reported in this case would not have happened. It shows that discipline and commitment to duty is not ensured within the rank and file in the force. Violence by the police against the poor and other forms of corruption and crimes committed by the police with impunity is a threat to the rule of law. Such a force is a threat to the entire country.

I therefore request you:

1. That the complaints of custodial torture in this case be investigated by an independent agency;
2. That the statements of the victim recorded immediately by a judicial officer;
3. The alleged officers placed on immediate suspension;
4. The victim should be produced before appropriate medical officer for treatment;
5. The victim and the witnesses shall be provided adequate protection immediately;
6. The victim released on bail without further delay;
7. The entire investigation supervised by a judicial officer and the victim or a member of their family is informed about the progress of the investigation:
8. The government pay an interim compensation to the victim pending the final disposal of their complaints by a court of law.

Yours sincerely,

----------------
PLEASE SEND YOUR LETTERS TO:

1. Director General & Inspector General of Police
Government of West Bengal
Writers Buildings, Kolkata-1
West Bengal
INDIA
Fax: +91 33 2214 4498 / 2214 5486
Email: dgp_westbengal@gmail.com

2. Chief Secretary
Government of West Bengal
Writers' Building, Kolkata
West Bengal
INDIA
Fax: + 91 33 22144328
Email: chiefsec@wb.gov.in

3. Additional Chief Secretary (Home)
Government of West Bengal
Writers' Building, Kolkata
West Bengal
INDIA
Email: sechome@wb.gov.in

4. Ms. Mamata Banerjee
Chief Minister
Government of West Bengal
Writers' Building, Kolkata
West Bengal
INDIA
Fax: + 91 33 22144328
Email: cm_wb@nic.in

5. Chairperson
National Human Rights Commission
Faridkot House, Copernicus Marg
New Delhi 110001
INDIA
Fax: + 91 11 2338 4863
E-mail: chairnhrc@nic.in

Thank you

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)

http://www.urgentappeals.net/support.php?ua=AHRC-UAC-047-2012

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