'Visaranai(Interrogation)' is an acclaimed Tamil film - inspired from real incidents - which depicts the horrors of custodial torture.
In the movie, four innocent Tamil migrant workers are tortured for several days by Andhra Pradesh police to force them to confess to a robbery. It is only after several days of unrecorded custody that they were produced before the Magistrate. Before the Magistrate, one of the persons musters the courage to state that their confessions were forced through torture. This makes the Magistrate, who is shown as a pro-active officer, to put questions to the police about the arrest and custody. Finding the responses of police wholly unsatisfactory, the Magistrate refuses to remand the workers, after getting convinced that they were illegally arrested. It is a different thing that three of them were later entrapped by the Tamil Nadu police, exposing them to another Kafkaesque course of torture. The one who managed to find way to his house after release by the Magistrate - M Chandrakumar - subsequently wrote about his experiences in his novel "Lock Up", which became the source for the movie.
This episode underlines the crucial role a Magistrate can play to protect personal liberty from arbitrary assaults by the police force. It is for this reason that the chapter on Fundamental Rights in the Constitution of India makes a specific mention of Magistrate. Article 22 of the Constitution lays down the concrete safeguards for personal liberty guaranteed under Article 21 by ensuring Magisterial supervision of police custody.
But incidents such as the horrific custodial deaths of father-son duo, Jeyaraj (62) & Bennix (32), in Sathankulam town near Thoothukudi in Tamil Nadu raise troubling questions about Magistrates performing their role as first line defenders of fundamental rights.
Mechanical remand a grave lapse
In the Sathankulam case, the FIR lodged against Jeyaraj and Bennis did not mention any grave offence. The offences alleged pertained to violation of lockdown guidelines, abuse and intimidation in public place etc, punishable under Sections 188, 269, 294(b), 353 and 506(2) IPC. None of the offences was punishable with imprisonment exceeding seven years.
It may be noted that there is no obligation cast on the police to arrest a person as soon as he is named as accused in an FIR. Rather, law mandates that arrest should be made only when it is absolutely necessary. This position has been clarified as per amendment brought to Code of Criminal Procedure in 2009, which substantively changed Section 41. As per the amended Section 41, arrest for offences which are punishable with imprisonment up to seven years can be made only in exceptional circumstances.
While passing remand orders in such cases, where the maximum punishment for the offence in the FIR is imprisonment up to seven years, the Magistrate has to be extra-cautious in ensuring that conditions under Section 41(b) are fulfilled. This has been explained by the Supreme Court in Arnesh Kumar v. State of Bihar AIR 2014 SC 2756.
As per the SC precedent, the Magistrate cannot mechanically order remand in such cases, and has to specifically record satisfaction about the the exceptional circumstances necessitating remand. It is surprising that the Magistrate in the instant case ordered their remand, overlooking the fact that the father-son duo had no criminal antecedents, and that the basic offence involved no moral turpitude as it pertained to the act of keeping the shop open beyond the deadline of 9 PM. The practice adopted by the Courts across the Country to avoid remand in minor offences in the wake of COVID-19 pandemic was also ignored by the Magistrate. It is pertinent to note that the Supreme Court, in its suo moto order passed on March 23, had suggested that undertrial prisoners for offences for which prescribed punishment is up to 7 years or less should be considered for release on bail.
The constitutional protection would become meaningless if the Magistrate acts mechanically without applying judicial mind to see whether the arrest of the person produced was in accordance with law. The power to remand during investigation is to be exercised 'judicially' with greatest care. While doing so, the Magistrate is not to act like a 'post office', mechanically forwarding the accused to the police custody by accepting the police version. This has been explained by the Supreme Court in Manubhai Ratilal Pater Tr.Ushaben vs. State of Gujarat (2013) 1 SCC 314 as
"The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand.
This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner "(emphasis supplied)"
Physical examination of accused necessary
There is another lapse in the case, which is far more serious. As per preliminary reports, Jeyaraj and Bennix were remanded despite both of them being severely injured.
In this regard, it is to be noted that Section 167(2), proviso (b) of the Code of Criminal Procedure insists on the physical production of the accused before the Magistrate at the first instance. The provision permits production via video conferencing only for subsequent extension of remands. This is to ensure that the accused is physically examined by the Magistrate at the first instance. This provision, if properly complied, acts as a safeguard against custodial violence.
Rule 6 of the Tamil Nadu Criminal Rules of Practice also mandates physical examination. The provision states :
No accused shall be placed under remand for the first time, unless he is produced physically. At the time of remand, the Judge/Magistrate shall see if there is any injury on the person of the accused. Any such injury shall be recorded in the remand order and the remand warrant as well. It is permissible to make extensions of remand through the medium of electronic video linkage.
Curiously, the FIR in the instant case also mentioned that the accused had "suffered internal injuries". As per the FIR, these injuries were caused by the accused themselves by rolling on the ground when the police had asked them to disperse.
Did the Magistrate diligently and independently verify the police version regarding the nature and occurrence of injuries on the accused before remanding them?
According to Justice K Chandru, former judge of Madras High Court, the Magistrate failed to act as per this statutory mandate to ensure the safety of the accused.
Speaking to LiveLaw, Justice Chandru said:
"The Magistrate never looked at the accused. If he had seen them with bleeding injuries or uncomfortable standing posture, he should have asked police about them. But he writes in the remand order 'no complaints'. When you don't even see them, where is the question of complaint.
The accused will never openly tell the Magistrate that they were ill treated by the police. Because they are under distress. Therefore it is the job of the Magistrate to enquire after physically seeing the accused. The Magistrate has to assure the accused"
Justice Chandru also raised eyebrows over the Magistrate remanding them to far away Kovilpatti sub-jail, although there was a District Jail at Perurani, closer to Sattankulam.
"The police has a modus operandi. Take the accused to a pliable Magistrate. Get a remand order. Put them in a jail where they have some extra-constitutional tie up and then forget everything".
Before remanding the accused, the Magistrate had to ensure that the FIR was properly registered following the 11-point guidelines in DK Basu case, and that the rights of the accused to have a lawyer and access to medical care were fulfilled, Justice Chandru added.
"If the police commit excesses, the person who can put an initial check is the Magistrate. In this case, the Sathankulam Magistrate has failed in his duty".
This instance takes one back to a similar tragedy of custodial death of one Rajmuar in Kerala in 2019. In that case too, there were were complaints about Magisterial lapses. The Chief Judicial Magistrate, after enquiry, reported that the concerned Magistrate had committed several lapses while remanding the accused. As per the enquiry report of the CJM, though the accused had wounds in his body, the Magistrate did not notice them, as the accused was examined by the Magistrate in dim light inside the police vehicle. There was no explanation as to why the Magistrate chose to go near the police vehicle to see the accused, instead of insisting on the police producing him before her, the CJM said. The Magistrate also missed to notice the glaring fact that the accused was produced after the period of 24 hours, the CJM said.
The High Court of Kerala later dropped the proceedings against the Magistrate by stating that she could have been "little more diligent".
Pitfalls of doing away with the physical production of accused citing COVID-19 pandemic
In the light of COVID-19 pandemic, many Courts have diluted the mandatory requirement of physical production of accused for the purposes of first remand.
The video conferencing rules adopted by Delhi High Court state that in exceptional circumstances, judicial remand in the first instance or police remand can be granted via video conferencing for reasons recorded in writing.
The Karnataka HC has also ruled that a Magistrate can authorize the remand of an accused for the first time via video conferencing in exceptional circumstances in the wake of COVID-19 pandemic, despite the bar under Section 167(2)(a) CrPC.
"Notwithstanding the clear provision of law under clause (b) of proviso to sub-section (2) of Section 167 of Cr.P.C that the order of first remand whether in respect of police custody or judicial custody and the subsequent extension of police custody remand can be made only by producing the accused in person before the learned Magistrate, some very exceptional cases where first remand is permitted through video conferencing will be covered by the directions issued by the Apex Court in clause (i) of paragraph 6 of the order dated 6th April, 2020. Therefore, the same shall be deemed to be lawful", the HC said.
In the light of the Sathankulam incident, there should be a re-think on the dilution of the mandatory condition of physical production of accused for remand.
The Magistracy has a solemn function to perform in the protection of personal liberties. They are the 'first line of defence' against assaults on citizens through arbitrary police actions. It was held by Allahabad High Court way back in 1959 that the Magistrate is not simply to 'rubber stamp' the prayer of the police officer seeking remand of the accused(Bir Bhadra Pratap Singh v D M Azamgarh AIR 1959 All 384). It may not be within the capabilities of everyone to approach higher constitutional courts against arbitrary and illegal arrests. Each moment of illegal detention adds indelible scars on the detenu's mind. Therefore, it is important for the Magistrates to be conscious of their larger constitutional role to check state excesses against personal liberties.
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