Justice Markandey Katju-
What has happened in Tuticorin, Tamilnadu is worse than the Nirbhaya case for which four persons involved were hanged recently in Delhi
A father and son, J Jayaraj, 58, and Bennicks Immanuel 31, running a mobile accessory shop in Sathankulam town in Tuticorin district were arrested by some policemen allegedly for keeping the shop open during the lockdown. They were then taken to the police station and brutally assaulted, evidently by forcibly thrusting a rod or sticks into their private parts (since they were profusely bleeding from their rectum needing three changes of clothes ). They later died.
In the Nirbhaya case, too, a rod was thrust into the private parts, but it was done by non-officials. Here it was done by policemen, whose duty it is to uphold the law and protect citizens. Thus, rakshaks turned into bhakshaks.
In Prakash Kadam vs Ramprasad Vishwanath Gupta, 2011 (see online ) the Supreme Court held that policemen found guilty of fake encounters should be given the death penalty, treating it as a ‘rarest of rare’ case. The Court observed:
“Policemen are persons who are supposed to uphold the law. In our opinion, if crimes are committed by ordinary people, ordinary punishment should be given, but if the offense is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties “.
So if the Nirbhay accused were hanged, all the more should the policemen in the Tuticorin case, if held guilty by the Court.
It may be mentioned that instances of custodial deaths were mounting in our country, as noted by the Supreme Court in its landmark decision in D.K.Basu vs State of West Bengal, 1996. Hence section 176 Criminal Procedure Code was amended and a special procedure created for investigating custodial deaths.
For ordinary crimes, the investigation is done by the police. But for custodial deaths section, 176 provided that investigation is to be done by a judicial magistrate. The purpose of making this special provision for custodial deaths was obvious: the police may not make a fair investigation against a colleague ( as there is often a tendency of people in the same service to gang up with each other ).
However, there is nothing in section 176 which says that policemen accused of custodial death cannot be arrested before the enquiry by the Magistrate is completed. In fact in cases of murder the police usually arrest the accused immediately, and does not wait to do so till the investigation is over.
It is surprising that the accused policemen have only been suspended. They should have been arrested, as was done to the killers of George Floyd in America. The enquiry and trial should thereafter be completed expeditiously, and if the accused are found guilty harsh exemplary punishment must be given so that policemen throughout India know that they cannot continue behaving as they were during the British Raj.
[Justice Markandey Katju is former Judge, Supreme Court of India, and former Chairman, Press Council of India. The views expressed are his own].