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INDIA: Custodial death of a man who was victimized of consecutive police remand

December 22, 2006

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ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal

22 December 2006
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UA-412-2006: INDIA: Custodial death of a man who was victimized by consecutive police remand

INDIA: Abuse of law; insincere policing; impunity; failure of the rule of law
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information from its local partner MASUM in West Bengal regarding the death of a man due to custodial negligence in the state of West Bengal on 22 November 2006. It has been reported that the victim had spent more than one month in remand before collapsing to death. No inquiry has been launched even though the law demands that a judicial magistrate must investigate all deaths while in police and juridical custody.

CASE DETAILS:

Mr. K Kannan was arrested by the police at the Hotel Mohit in Howarth by the burglary section of the Detective Department of Lal bazaar Kolkata on 7 October 2006.?He was charged under section 380 (Theft in dwelling house, etc) of Indian Penal Code (IPC), 1860 in vide case no. 255/2006. The detective department police identified him as a suspect involved in a theft which took place at the Industrial Development Bank of India (IDBI), Park Street Branch Kolkata in West Bengal.

Mr. Kannan along with other arrested suspects was produced before the Metropolitan Magistrate Court of Bankshall, Kolkata in West Bengal. The Court of Metropolitan Magistrate ordered them to be held in police custody for 10 days.?After 10 days on 17 October 2006, Mr. Kannan and the other suspects were produced before the same court and implicated in another theft case by the Shakespeare Sarani police (case no. 173 u/s 380 of IPC). The court again ordered Mr. Kannan and the others to stay in remand for another 9 days.?After the 9 days expired, the group was ordered to stay in remand again for another 10 day period.?
?
On November 6, Mr. Kannan and the other suspects were shown under arrest for a fourth time by the Bowbazar police in case no. 311 under section 461 (Dishonestly breaking open receptacle containing property) and 380 of IPC and the same court once again ordered remand until November 10. On November 10, Mr. Kannan and other suspects were produced before the same court and were sent to Presidency Jail in Kolkata under judicial custody after receiving a medical check up, according to the police version.???
?lt;br />Due to poor health, Mr. Kannan was admitted to the jail hospital in between November 13 to November 17.?On November 21, he was released from medical care despite being in critical condition, as he was suffering from jaundice.

On the morning of November 22, Mr. Kannan visited the jail hospital for a medical check-up and to receive medicine despite having no help from the jail’s authorities. With no doctors allegedly available and too weak to stand in the queue, Mr. Kannan bent down on the railing of the veranda in front of the dispensary and fell to the floor. Suffering from critical injuries, Mr. Kannan was admitted to the Jail hospital at 10:30 am and finally succumbed to his injuries 30 minutes later at 11:00 am.


ADDITIONAL COMMENTS:

In this case, Mr. K. Kannan was kept in police custody four consecutively times relating to different cases by the metropolitan magistrate. The AHRC believes that the court exercised an abuse of power under section 167(2) of the Criminal Procedure Code of India by way of granting unreasonable remand. Section 167(2) of Cr PC states that "The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole?amp;quot;.

However, such legal protection has not been extended to the victim in this case. Unfortunately this violation by the courts and the police is common practice in India. If the police want to keep a suspect exceeding the period of detention permitted by law, they often implicate the suspect into different cases to seek further police remand. In those cases, the courts, which has mandate to monitor the police conduct, merely approve their request.?

It is not only against Article 21 of Constitution of India relating to the right to life but against Section 25 of Indian Evidence Act, which says that no confession made before a police officer shall be admissible in a court of law.?

It is clear that Mr. K. Kannan’s death was caused by the excessive abuse of the rule of law and gross negligence committed by the police, the judiciary and jail authorities. The victim was ordered to be kept in police remand four separate times but had never gone through a medical check up as is required and highlighted in section 54 of Criminal Procedure Code of India.

It is also violation of Supreme Court directives given in the case of D.K. Basu v State of West Bengal. According to the Supreme Court direction "The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health services of the concerned state or Union Territory. Director, Health services should prepare panel for all Tehsils and Districts as well".??

After the death of Mr. Kannan while in judicial custody, an inquiry was conducted by Mr. S.S. Bhattachrya, Executive Magistrate of Alipore Court, Kolkata. While, it is mandatory by law to hold judicial inquiry by concerned judicial magistrate, in the case of a custodial death. Until now, no such inquiry has been initiated in this respect.
?lt;br />In West Bengal, the situation of the rule of law has reached its lowest ebb, particularly regarding the aspects of policing. Police torture or custodial deaths at the police stations are common features in India. To see some of those recent cases, please refer to: UA-301-2006, UP-09-2005, UA-329-2006,?UA-57-2004 and UA-231-2005.

SUGGESTED ACTION:
Please write to the relevant authorities and ask for their immediately intervention in this matter. Please urge them to order a prompt and thorough investigation regarding the misconduct of the concerning police and to take the proper steps in punishing the alleged perpetrators. Please also express your condemnation towards this clear and absolute violation of legal procedure.

To support this appeal, please click:

Sample letter:

Dear ________,

INDIA: Custodial death of a man who was victimized by consecutive police remand

Name of victim: Mr. K. Kannan son of late D. Kannan, aged about 39 years, a resident of 3/73 Marianman Koil street under Hosur police station in Dharmapuri district, Tamilnadu state, India
Alleged perpetrators:
1. The prison authority, Presidency Jail, Alipore, Kolkata, West Bengal, India
2. S.S. Bhattacharya (WBCS) Executive Magistrate of Alipore court, Kolkata, West Bengal, India
3. Officers attached to the Detective Department of Lal bazaar Kolkata, Shakespeare Sarani police station and Bowbazar police station
Date of incident: 22 November 2006

I am extremely disturbed to learn about an alleged custodial death of a man who had already spent more than one month in police custody before he collapsed to death on 22 November 2006. It has been alleged that no inquiry has been launched concerning the death even though the law stipulates that a judicial magistrate must investigate all deaths while in police or judicial custody.

According to the information I have received, Mr. K Kannan was arrested by the police at the Hotel Mohit in Howarth by the burglary section of the Detective Department of Lal bazaar Kolkata on 7 October 2006 (case no.: 255/2006 u/s 380 of IPC). Mr. Kannan along with other arrested suspects was produced before the Metropolitan Magistrate Court of Bankshall, Kolkata in West Bengal, which ordered them to be held in police custody for 10 days.?Since then the same court granted three more consecutive police remands to MR. K Kannan and the others based on charges lodged by the police in difference cases (refer to: case no. 173 u/s 380 of IPC at Shakespeare Sarani police station and case no. 311 u/s 461 & 380 of IPC at the Bowbazar police station). As a result, the victim had been detained in police custody for more than one month.

On November 10, Mr. Kannan and other suspects were produced before the court and were sent to Presidency Jail under judicial custody after receiving a medical check up, according to police.???
?lt;br />Due to poor health, Mr. Kannan was admitted to the jail hospital in between November 13 to November 17 but he was released from medical care despite being in critical condition, as he was suffering from jaundice.

Then on the morning of November 22, Mr. Kannan visited the jail hospital for a medical check-up and to receive medicine despite having no help from the jail’s authorities. With no doctors allegedly available and too weak to stand in the queue, Mr. Kannan bent down on the railing of the veranda in front of the dispensary and fell to the floor. Suffering from critical injuries, Mr. Kannan was admitted to the Jail hospital at 10:30 am and finally succumbed to his injuries 30 minutes later at 11:00 am.

I believe that the court exercised an abuse of power under Section 167(2) of the Cr P C by way of granting unreasonable remand. It is not only against Article 21(the right to life) and Article 22 (protection against arrest and detention) of Indian constitution but also Section 25 of Indian Evidence Act which says that no confession made before a police officer shall be admissible in court of law.?

Authorities have also violated the section 176 of Criminal Procedure Code states that when any person dies in the judicial custody, the concerned judicial magistrate is empowered to hold an enquiry into the cause of death. Until now, no such inquiry has been initiated in this respect.

I believe that if the directive of Supreme Court issued in the case of D.K. Basu v State of West Bengal would have been followed and the victim would have gone through medical check up during his detention in police custody then his life could have been saved.

In light of the above, I strongly urge that you immediately intervene in this matter of custodial death. I ask you to appoint an independent investigating authority to enquire into the whole incident which has caused an untimely death of a man held in judicial custody. Particularly an inquiry should be conducted to find under which circumstances the victim was given four consecutive police remands by the court without any scrutiny about the police conduct. If the abuse of power by the police or judiciary is proven in this case, strong action must be taken against those responsible.?

I also demand that you inquire into the negligence committed by the Presidency Jail authority. If it is proven that the jail authorities have committed negligence and the Executive Magistrate has violated the procedure of law, legal action must be taken against the officers allegedly responsible. I also demand that you give adequate compensation to the victim's family.

I look forward to hearing about your urgent intervention into this case.


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PLEASE SEND YOUR LETTER TO:

1. Mr. Manmohan Singh
Prime Minister of India
Prime Minister's Office
Room number 152, South Block
New Delhi
INDIA
Fax: +91 11 23016857
Email: pmosb@pmo.nic.in

2. Mr. Buddhadeb Bhattacharjee
Chief Minister/ Minister of Home Department
Government of West Bengal
Writer's Building
Kolkata - 700 001
West Bengal
INDIA
Fax: +91 33 2214 5480/ 2214 1341

3. Chairperson
National Human Rights Commission of India
Faridkot House, Copernicus Marg
New Delhi -110001
INDIA
Fax: +91 11 2334 0016
Email: chairnhrc@nic.in

4. Mr. Subhash Awasthi
Director General of Police
Government of West Bengal
Writers Buildings
Kolkata-1
West Bengal
INDIA
Fax: +91 33 2214 4498 / 2214 5486
Email: padgp@wbpolice.gov.in?lt;/font>

5. Chief Secretary
Government of West Bengal
Writers' Buildings, Kolkata - 700001
West Bengal
INDIA
Fax: +91 33 22144328

6. Home Secretary
Government of West Bengal
Writers' Buildings, Kolkata - 700001
West Bengal
INDIA
Fax: +91 33 22143001
Email: sechome@wb.gov.in

7. Mr. Philip Alston
Special Rapporteur on Extra-judicial, Summary, or Arbitrary Executions
Attn: Lydie Ventre
Room 3-016
c/o OHCHR-UNOG
1211 Geneva 10
SWITZERLAND
Tel: +41 22 917 9155
Fax: +41 22 917 9006 (ATTN: SPECIAL RAPPORTEUR EXECUTIONS)


Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ahrchk@ahrchk.org)

Document Type :
Urgent Appeal Case
Document ID :
UA-412-2006
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Extended Introduction: Urgent Appeals, theory and practice

A need for dialogue

Many people across Asia are frustrated by the widespread lack of respect for human rights in their countries.  Some may be unhappy about the limitations on the freedom of expression or restrictions on privacy, while some are affected by police brutality and military killings.  Many others are frustrated with the absence of rights on labour issues, the environment, gender and the like. 

Yet the expression of this frustration tends to stay firmly in the private sphere.  People complain among friends and family and within their social circles, but often on a low profile basis. This kind of public discourse is not usually an effective measure of the situation in a country because it is so hard to monitor. 

Though the media may cover the issues in a broad manner they rarely broadcast the private fears and anxieties of the average person.  And along with censorship – a common blight in Asia – there is also often a conscious attempt in the media to reflect a positive or at least sober mood at home, where expressions of domestic malcontent are discouraged as unfashionably unpatriotic. Talking about issues like torture is rarely encouraged in the public realm.

There may also be unwritten, possibly unconscious social taboos that stop the public reflection of private grievances.  Where authoritarian control is tight, sophisticated strategies are put into play by equally sophisticated media practices to keep complaints out of the public space, sometimes very subtly.  In other places an inner consensus is influenced by the privileged section of a society, which can control social expression of those less fortunate.  Moral and ethical qualms can also be an obstacle.

In this way, causes for complaint go unaddressed, un-discussed and unresolved and oppression in its many forms, self perpetuates.  For any action to arise out of private frustration, people need ways to get these issues into the public sphere.

Changing society

In the past bridging this gap was a formidable task; it relied on channels of public expression that required money and were therefore controlled by investors.  Printing presses were expensive, which blocked the gate to expression to anyone without money.  Except in times of revolution the media in Asia has tended to serve the well-off and sideline or misrepresent the poor.

Still, thanks to the IT revolution it is now possible to communicate with large audiences at little cost.  In this situation there is a real avenue for taking issues from private to public, regardless of the class or caste of the individual.

Practical action

The AHRC Urgent Appeals system was created to give a voice to those affected by human rights violations, and by doing so, to create a network of support and open avenues for action.  If X’s freedom of expression is denied, if Y is tortured by someone in power or if Z finds his or her labour rights abused, the incident can be swiftly and effectively broadcast and dealt with. The resulting solidarity can lead to action, resolution and change. And as more people understand their rights and follow suit, as the human rights consciousness grows, change happens faster. The Internet has become one of the human rights community’s most powerful tools.   

At the core of the Urgent Appeals Program is the recording of human rights violations at a grass roots level with objectivity, sympathy and competence. Our information is firstly gathered on the ground, close to the victim of the violation, and is then broadcast by a team of advocates, who can apply decades of experience in the field and a working knowledge of the international human rights arena. The flow of information – due to domestic restrictions – often goes from the source and out to the international community via our program, which then builds a pressure for action that steadily makes its way back to the source through his or her own government.   However these cases in bulk create a narrative – and this is most important aspect of our program. As noted by Sri Lankan human rights lawyer and director of the Asian Human Rights Commission, Basil Fernando:

"The urgent appeal introduces narrative as the driving force for social change. This idea was well expressed in the film Amistad, regarding the issue of slavery. The old man in the film, former president and lawyer, states that to resolve this historical problem it is very essential to know the narrative of the people. It was on this basis that a court case is conducted later. The AHRC establishes the narrative of human rights violations through the urgent appeals. If the narrative is right, the organisation will be doing all right."

Patterns start to emerge as violations are documented across the continent, allowing us to take a more authoritative, systemic response, and to pinpoint the systems within each country that are breaking down. This way we are able to discover and explain why and how violations take place, and how they can most effectively be addressed. On this path, larger audiences have opened up to us and become involved: international NGOs and think tanks, national human rights commissions and United Nations bodies.  The program and its coordinators have become a well-used tool for the international media and for human rights education programs. All this helps pave the way for radical reforms to improve, protect and to promote human rights in the region.