March 15, 2012 : The Asian Human Rights Commission (AHRC) has received information from Banglar Manabadhikar Suraksha Mancha (MASUM) concerning another case of brutal custodial torture by the West Bengal police of Mr. Firoj Ahmed, and of his wife Ms. Achma Bibi of Srikati village, North 24 Parganas district, West Bengal. The incident happened on 7 February 2012 at about 2.30 am in the house of the victims. Torture continued at the police station as well. 16 officers of the Basirhat Police Station are involved in this case. It is reported that Firoj is still in custody.
A fact-finding undertaken by MASUM concerning the case has revealed the following details. On 7 February 2012 at about 2.30 am, a team of 16 police officers reportedly from Basirhat Police Station, raided the house of the victims at night. The police assaulted the victims at their house and later arrested Firoj. The police kicked Firoj and hit him with their riffle butt and wooden batons. Firoj sustained severe injuries in the incident and is reported to be unable to stand or walk.
When Achma Bibi, wife of Firoj, tried to save her husband from the brutality of the police, they assaulted her as well. The police assaulted Achma on her left hand with wooden baton; kicked and thrashed her on the ground. The officers verbally abused the victims in filthy language. The officers did not offer any reason whatsoever for the search or arrest. The police complied with no mandatory procedures at the time of the search and arrest, and no memo of arrest was issued. The officers did not inform the victims where Firoj is taken to or why he is arrested.
On the next day Achma Bibi and relatives went to the local police station to meet Firoj expecting that he would be at Basirhat Police Station. They were at the station at about 10 am. They requested permission to meet Firoj at the station. At this, the officer in charge of the police station once again abused them using filthy language and did not allow them to meet Firoj. After several and repeated requests the police allowed them to meet Firoj.
At the station they found that Firoj had suffered fractures on his fingers on his left hand from torture. The police however had denied any medical treatment to the victim. It is reported that the police also refused to properly feed Firoj while he was in custody. Later they came to know that the police had accused Firoj of having committed offenses under the Narcotic Drugs and Psychotropic Substances Act, 1985. A crime is registered against Firoj as crime number 24 of 2012 under Section 20 (b) of the Act. Firoj is still in custody.
Seeking the legal action against the incident on 20 February 2012, Achma Bibi lodged a written complaint before the Additional Superintendent of Police, Barasat, North 24 Pargans district. But until now no action is taken regarding the above-mentioned complaint.
This is not the first case that the AHRC and MASUM have reported concerning custodial violence perpetuated by Basirhat police. A former Urgent Appeal, AHRC-UAC-030-2012 issued on 22 February 2012 speaks about similar facts. In that case however the police were demanding bribe from the accused for not falsely implicating him criminal cases.
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. 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. Mr.Firoj 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 Indian Penal Code 1860 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 354 of the code mandates; punishment for assault or criminal force to woman with intend to outrage her modesty -whoever assaults or uses criminal force to any woman intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extended to two years, or with both.
Section 384 of the code mandates; punishment for extortion that whoever commits extortion shall be punished with imprisonment for a term, which may extend to three years or with fine or with both.
Section 458 of code mandates; punishment for lurking house trespass or house breaking by night after preparation for hurt, assault, or wrongful restraint – whoever commits lurking house by night or house breaking by night having made preparation for causing hurt to any person or for assaulting any person, or for wrongfully restraining any person, or for putting any person in fear of hurt, or assault, or wrongful restraint, shall be punished with imprisonment for life either description for a term which may extend to fourteen years and shall also be liable to fine.
Section 326 of the Code mandates; punishment by way of imprisonment for a term of ten years to a person who voluntarily causes hurt by dangerous weapons or means.
Section 144 of the code mandates: Joining unlawful assembly armed with deadly weapon.-Whoever being armed with deadly weapon or with anything, which used as a weapon of offence is likely to cause death. Is a member of unlawful assembly, shall be punished with imprisonment of either description for a term, which may extend to two years or with fine, or with both.
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.