Gujarat maintains Ishrat a terrorist, will challenge probe report

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment vis-a-vis sec.176 of CRPC :

- A death knell for fake Police encounters…

Union of India signed the Convention against Torture and Other Cruel, Inhuman or

Degrading Treatment or Punishment of UNO on 14th October, 1997.

Article : 19 of CAT reads as follows :

1.The States Parties shall submit to the Committee, through the Secretary-General

of the United Nations, reports on the measures they have taken to give effect to

their undertakings under this Convention, within one year after the entry into

force of the Convention for the State Party concerned. Thereafter the States

Parties shall submit supplementary reports every four years on any new

measures taken and such other reports as the Committee may request.

\
2. The Secretary-General of the United Nations shall transmit the reports to all

States Parties.

3. Each report shall be considered by the Committee which may make such

general comments on the report as it may consider appropriate and shall

forward these to the State Party concerned. That State Party may respond with

any observations it chooses to the Committee.

4.The Committee may, at its discretion, decide to include any comments

made by it in accordance with paragraph 3 of this article, together with the

observations thereon received from the State Party concerned, in its

annual report made in accordance with article 24. If so requested by the

State Party concerned, the Committee may also include a copy of the

report submitted under paragraph I of this article.

There was question and answer in Rajya Sabha in the following parlance :

GOVERNMENT OF INDIA

MINISTRY OF HOME AFFAIRS

RAJYA SABHA

UNSTARRED QUESTION NO 568

ANSWERED ON 22.10.2008

ASSESSMENT ON CUSTODIAL DEATHS .

568.
SHRIMATI SUPRIYA SULE

Will the Minister of HOME AFFAIRS be pleased to state:-

(a) whether four persons died or had been killed in prison and police custody every day during the period between 2002-07;

(b) whether according to Government figures, as many as 7468 custodial deaths have occurred in the period but only a fraction are convicted for it;

(c) whether this was revealed in the first ever nation-wide assessment for the use of the `Torture in India, 2008`;

(d) whether this has been brought out in the report by Asian Centre for Human Rights, an NGO;

(e) whether Government has considered the report; and

(f) the steps proposed to be taken to avoid such custodial deaths in the country?

ANSWER

MINISTER OF STATE IN THE MINISTRY OF HOME AFFAIRS

(DR. SHAKEEL AHMAD)

(a) to (f): As per the guidelines issued by the National Human Rights Commission (NHRC) to all State Governments/Union Territories, all cases of custodial deaths are required to be reported to the NHRC within 24 hours of its occurrence alongwith the relevant reports viz. Inquest Reports, Magisterial Inquiry Reports, Post-Mortem Reports.
Year-wise deaths reported to NHRC in judicial as well as police custody for the period 1.4.2002 to 31.3.2008 is at Annexure-I.

In every proven case of such violation of human rights, the NHRC recommends interim relief/compensation for the family of the deceased and/or disciplinary action/prosecution of the erring public servant.
The Chairperson and Members of the NHRC during their visits to the State/Union Territories, always emphasize upon State functionaries the need to curb the occurrence of custodial deaths. Besides, the Commission from time to time, while disposing of cases of custodial deaths, makes appropriate observations to the State authorities to prevent recurrence of such custodial deaths.
Section 176 of Criminal Procedure Code has been amended through the Code of Criminal Procedures (Amendment) Act, 2005 to provide that in the case of death or disappearance of a persons, or rape of a woman while in the custody of the police, there shall be a mandatory judicial inquiry and in case of death examination of the dead body shall be conducted within 24 hours of death.
The Ministry has circulated the important guidelines as directed by Hon’ble Supreme Court in the case of D.K. Basu Vs. State of West Bengal which are to be followed by all authorities concerned while making the arrests. Amendments have also been proposed in the Cr. P.C. through the Code of Criminal Procedure (Amendment) Bill, 2006 which are, inter-alia, aimed to incorporate the above guidelines, and certain other provisions regarding arrests, in the Code. It has also been proposed to insert a new section 357(a) in Cr. P.C. to provide for compensating to the victims of all types of crimes including custodial crimes.

ANNEXURE-I
 
STATEMENT IN REPLY TO  RAJYA SABHA UNSTARRED QUESTION NO. 568 FOR 22.10.2008
 
YEAR-WISE STATEMENT SHOWING DEATHS IN JUDICIAL AS WELL AS IN POLICE CUSTODY REPORTED TO NHRC
 
S.NO.
Year
Number of cases
 
 
Judicial Custody
Police Custody
1.
2002-2003
1158
183
2.
2003-2004
1300
162
3.
2004-2005
1357
136
4.
2005-2006
1591
139
5.
2006-2007
1477
118
6.
2007-2008
1789
188

Here, we, find the genesis of sec. 176 of CRPC which read as follows :

U/S 176 Cr.P.C.

Inquiry by Magistrate into cause of death

1) When any person dies while in the custody of the police, the nearest magistrate empowered to hold inquests shall, and in any other case mentioned in sub-section (1) of Section 174, any Magistrate so empowered may hold an inquiry into the cause of death either instead of, or in addition to, the investigation held by the police officer, and if he does so, he shall have all the powers in conducting it which he would have in holding an inquiry into an offence.

2)The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any manner hereinafter prescribed according to the circumstances of the case.

3)Whenever such Magistrate considers it expedient to make an examination of the dead body of any person who has been already interred, in order to discover the cause of his death, the Magistrate may cause the body to be disinterred and examined.

4)Where an inquiry is to be held under this section, the Magistrate shall wherever practicable, inform the relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the inquiry.

UNO has continued to direct and monitor the provisions of CAT by furthering the ambit of Article :19 of the CAT in the following terms:

Convention against Torture
and Other Cruel, Inhuman
or Degrading Treatment
or Punishment

18 July 2005

GUIDELINES ON THE FORM AND CONTENT OF INITIAL REPORTS
UNDER ARTICLE 19 TO BE SUBMITTED BY STATES PARTIES TO
THE CONVENTION AGAINST TORTURE

1. Under article 19 of the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment each State party undertakes to submit a report on the
measures taken to give effect to its undertakings under the Convention. The initial report is due
within one year after the entry into force of the Convention for that State party and thereafter
every four years unless the Committee requests other reports.
2. In order to assist States parties in fulfilling their obligations under article 19, the
Committee has adopted the following general guidelines as to the form and content of initial
reports. The present Guidelines replace the earlier version adopted by the Committee at
its 82nd meeting (sixth session) in April 1991.

PART I. GENERAL INFORMATION

A. Introduction

3. In the introductory part of the report, cross-references to the expanded core document
should be made regarding information of a general nature, such as the general political structure,
general legal framework within which human rights are protected, etc. It is not necessary to
repeat that information in the initial report.
4. Information on the process of preparing the report should be included in this section. The
Committee considers that drafting of reports would benefit from broad-based consultations. It
therefore welcomes information on any such consultations within Government, with national
institutions for the promotion and protection of human rights, non-governmental organizations
and other organizations that might have taken place.

B. General Legal Framework under which torture and other cruel, inhuman or degrading treatment or punishment is prohibited
5. In this section the Committee envisages receiving specific information related to the
implementation of the Convention to the extent that it is not covered by the core document, in
particular the following:
• A brief reference to constitutional, criminal and administrative provisions regarding
the prohibition of torture and other cruel, inhuman or degrading treatment or
punishment;
• International treaties dealing with torture and other cruel, inhuman or degrading
treatment or punishment to which the reporting State is a party;
• The status of the Convention in the domestic legal order, i.e. with respect to the
Constitution and the ordinary legislation;
• How domestic laws ensure the non-derogability of the prohibition of any cruel,
inhuman or degrading treatment or punishment;
• Whether the provisions of the Convention can be invoked before and are directly
enforced by the courts or administrative authorities or whether they have to be
transformed into internal laws or administrative regulations to be enforced by the
authorities concerned. Should the latter be a requirement, the report should provide
information on the legislative act incorporating the Convention into the domestic
legal order;
• Judicial, administrative or other competent authorities with jurisdiction/a mandate
covering matters dealt with in the Convention, such as the Constitutional Court, the
Supreme Court, the ordinary and military courts, the public prosecutors, disciplinary
bodies, administrative authorities in charge of police and prison administration,
national institutions for the promotion and protection of human rights, etc. Provide
an overview of the practical implementation of the Convention at the federal, central,
regional and local levels of the State, and indicate any factors and difficulties that
may affect the fulfilment of the obligations of the reporting State under the
Convention. The report should include specific information related to the
implementation of the Convention in such circumstances. Relevant documentation
collected by the authorities or other private or public institutions is welcome.

II. INFORMATION IN RELATION TO EACH SUBSTANTIVE ARTICLE OF THE CONVENTION
6. As a general rule the report should include, in connection with each article, the following
information:
• The legislative, judicial, administrative or other measures giving effect to the
provisions;
• Concrete cases and situations where measures giving effect to the provisions have
been enforced, including any relevant statistical data;
• Cases or situations of violation of the Convention, the reasons for such violations and
the measures taken to remedy the situation. It is important for the Committee to
obtain a clear picture not only of the legal situation, but also of the de facto situation.

Article 1

7. This article contains the definition of torture for the purposes of the Convention. Under
this provision the report should include:
• Information on the definition of torture in domestic law, including indications as to
whether such a definition is in full conformity with the definition of the Convention;
• In the absence of a definition of torture in domestic law in conformity with the
Convention, information on criminal or legislative provisions that cover all cases of
torture;
• Information on any international instruments or national legislation that contains or
may contain provisions of wider application.
Article 2, paragraph 1
8. This provision introduces the obligation of the States parties to take effective measures to
prevent acts of torture. The report should contain information on:
• Pertinent information on effective measures taken to prevent all acts of torture,
inter alia with respect to: duration of police custody; incommunicado detention; rules
governing the rights of arrested persons to a lawyer, a medical examination, contact
with their family, etc.; emergency or anti-terrorist legislation that could restrict the
guarantees of the detained person.
9. The Committee would welcome an assessment by the reporting State of the effectiveness
of the measures taken to prevent torture, including measures to ensure that those responsible are
brought to justice.

Article 2, paragraph 2

10. The report should contain information on effective measures to ensure that no
exceptional circumstances are invoked, in particular:
• Whether legal and administrative measures exist to guarantee that the right not to be
tortured is not subject to derogation during a state of war, a threat of war, internal
political instability or any other public emergency.

Article 2, paragraph 3

11. The report should indicate:
• Whether legislation and jurisprudence exist with regard to the prohibition on
invoking superior orders, including orders from military authorities, as a justification
of torture; if these exist, information should be provided on their practical
implementation;
• Whether there are any circumstances in which a subordinate is permitted lawfully to
oppose an order to commit acts of torture, the recourse procedures available to
him/her and information on any such cases that may have occurred;
• Whether the position of public authorities with respect to the concept of “due
obedience” as a criminal law defence has any impact on the effective implementation
of this prohibition.

Article 3
12. This article prohibits the expulsion, return or extradition of a person to a State where
he/she might be tortured. The report should contain information on:
• Domestic legislation with regard to such prohibition;
• Whether legislation and practices concerning terrorism, emergency situations,
national security or other grounds that the State may have adopted have had any
impact on the effective implementation of this prohibition;
• Which authority determines the extradition, expulsion, removal or refoulement of a
person and on the basis of what criteria;
• Whether a decision on the subject can be reviewed and, if so, before which authority,
what are the applicable procedures and whether such procedures have suspensive
effects;
• Decisions taken on cases relevant to article 3 and the criteria used in those decisions,
the information on which the decisions are based and the source of this information;
• The kind of training provided to officials dealing with the expulsion, return or
extradition of foreigners.

Article 4
13. It is implicit in the reporting obligations imposed by this article that each State shall enact
legislation criminalizing torture in terms that are consistent with the definition in article 1. The
Committee has consistently expressed the view that the crime of torture is qualitatively
distinguishable from the various forms of homicide and assault that exist and therefore should be
separately defined as a crime. The report should contain information on:

• Civil and military criminal provisions regarding these offences and the penalties
related to them;
• Whether statutes of limitations apply to such offences;
• The number and the nature of the cases in which those legal provisions were applied
and the outcome of such cases, in particular, the penalties imposed upon conviction
and the reasons for acquittal;
• Examples of judgements relevant to the implementation of article 4;
• Existing legislation on disciplinary measures during the investigation of an alleged
case of torture to be taken against law enforcement personnel responsible for acts of
torture (e.g. suspension);
• Information on how established penalties take into account the grave nature of
torture.

Article 5
14. Article 5 deals with the States parties’ legal duty to establish jurisdiction over the crimes
mentioned in article 4. The report should include information on:
• Measures taken to establish jurisdiction in the cases covered under (a), (b) and (c) of
paragraph 1. Examples of cases where (b) and (c) were applied should also be
included;
• Measures taken to establish jurisdiction in cases where the alleged offender is present
in the territory of the reporting State and the latter does not extradite him/her to a
State with jurisdiction over the offence in question. Examples of cases where
(a) extradition was granted and (b) extradition was denied should be provided.

Article 6
15. Article 6 deals with the exercise of jurisdiction by the State party, particularly the issues
concerning the investigation of a person who is in the territory and is alleged to have committed
any offence referred to in article 4. The report should provide information on:
• The domestic legal provisions concerning, in particular, the custody of that person or
other measures to ensure his/her presence; his/her right to consular assistance; the
obligation of the reporting State to notify other States that might also have
jurisdiction that such a person is in custody; the circumstances of the detention and
whether the State party intends to exercise jurisdiction;
• The authorities in charge of the implementation of the various aspects of article 6;
• Any cases in which the above domestic provisions were applied.

Article 7
16. This article contains the obligation of the State to initiate prosecutions relating to acts of
torture whenever it has jurisdiction, unless it extradites the alleged offender. The report should
provide information on:
• Measures to ensure the fair treatment of the alleged offender at all stages of the
proceedings, including the right to legal counsel, the right to be presumed innocent
until proved guilty, the right to equality before courts, etc.;
• Measures to ensure that the standards of evidence required for prosecution and
conviction apply equally in cases where the alleged offender is a foreigner who
committed acts of torture abroad;
• Examples of practical implementation of the measures referred to above.

Article 8
17. By virtue of article 8 of the Convention, the States parties undertake to recognize torture
as an extraditable offence for purposes of facilitating the extradition of persons suspected of
having committed acts of torture and/or the related crimes of attempting to commit and
complicity and participation in torture. The report should include information on:
• Whether torture and related crimes are considered by the reporting State as
extraditable offences;
• Whether the reporting State makes extradition conditional on the existence of a
treaty;
• Whether the reporting State considers the Convention as the legal basis for
extradition in respect of the offences referred to above;
• Extradition treaties between the reporting State and other States parties to the
Convention that include torture as an extraditable offence;
• Cases where the reporting State granted the extradition of persons alleged to have
committed any of the offences referred to above.

Article 9
18. By virtue of this article the States parties undertake to provide mutual judicial assistance
in all matters of criminal procedure regarding the offence of torture and related crimes of
attempting to commit, complicity and participation in torture. Reports shall include information
on:

• Legal provisions, including any treaties, concerning mutual judicial assistance that
apply in the case of the above-mentioned offences;
• Cases involving the offence of torture in which mutual assistance was requested by or
from the reporting State, including the result of the request.

Article 10
19. By virtue of this article and related article 16, States are obliged to train, inter alia,
medical and law enforcement personnel, judicial officials and other persons involved with
custody, interrogation or treatment of persons under State or official control on matters related to
the prohibition of torture and cruel, inhuman or degrading treatment or punishment. The report
should include information on:
• Training programmes on the above-mentioned subject for persons charged with the
various functions enumerated in article 10 of the Convention;
• Information on the training of medical personnel dealing with detainees or
asylum-seekers to detect physical and psychological marks of torture and training of
judicial and other officers;
• The nature and frequency of the instruction and training;
• Information on any training that ensures appropriate and respectful treatment of
women, juveniles, and ethnic, religious or other divers groups, particularly regarding
forms of torture that disproportionately affect these groups;
• The effectiveness of the various programmes.

Article 11
20. By virtue of this article and related article 16, States are obliged to keep under review
interrogation rules, instructions, methods and practices as well as arrangements for the custody
and treatment of persons subjected to any form of arrest, detention or imprisonment with a view
to preventing torture and other cruel, inhuman or degrading treatment or punishment. The report
should include information on:
• Laws, regulations and instructions concerning the treatment of persons deprived of
their liberty;
• Information on measures requiring prompt notification of and access to lawyers,
doctors, family members and, in the case of foreign nationals, consular notification;
• The degree to which the following rules and principles are reflected in the domestic
law and practice of the State: the Standard Minimum Rules for the Treatment of
Prisoners; the Basic Principles for the Treatment of Prisoners; the Body of Principles
for the Protection of All Persons under Any Form of Detention or Imprisonment;
Principles of Medical Ethics relevant to the Role of Health Personnel, particularly
Physicians, in the Protection of Prisoners and Detainees against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment; and the Code of Conduct for
Law Enforcement Officials;
• Any independent bodies or mechanisms established to inspect prisons and other
places of detention and to monitor all forms of violence against men and women,
including all forms of sexual violence against both men and women and all forms of
inter-prisoner violence, including authorization for international monitoring or NGO
inspections;
• Information on measures to ensure that all such places are officially recognized and
that no incommunicado detention is permitted;
• Mechanisms of review of the conduct of law enforcement personnel in charge of the
interrogation and custody of persons held in detention and imprisonment and results
of such reviews, along with any qualification or re-qualification procedures;
• Information on any safeguards for the protection of individuals especially at risk.

Article 12
21. On the basis of this article and related article 16, the State must ensure that its competent
authorities proceed to a prompt and impartial investigation when there is reason to believe that
under its jurisdiction an act of torture or cruel, inhuman or degrading treatment or punishment
has been committed. The report should identify:
• The authorities competent to initiate and carry out the investigation, both at the
criminal and disciplinary levels;
• Applicable procedures, including whether there is access to immediate medical
examinations and forensic expertise;
• Whether the alleged perpetrator is suspended from his/her functions while the
investigation is being conducted and/or prohibited from further contact with the
alleged victim;
• Information on the results of cases of prosecution and punishment.

Article 13
22. By virtue of this article and related article 16, States parties must guarantee the right of
any individual who alleges that he/she has been subjected to torture or cruel, inhuman or
degrading treatment or punishment to complain and to have his/her case promptly and
impartially investigated, as well as the protection of the complainant and witnesses against
ill-treatment or intimidation. The report should include information on:

• Remedies available to individuals who claim to have been victims of acts of torture or
other cruel, inhuman or degrading treatment or punishment;
• Remedies available to the complainant in case the competent authorities refuse to
investigate his/her case;
• Mechanisms for the protection of the complainants and the witnesses against any kind
of intimidation or ill-treatment;
• Statistical data disaggregated, inter alia, by sex, age, crime and geographical location
on the number of complaints of torture and cruel, inhuman or degrading treatment or
punishment submitted to the domestic authorities and the results of the investigations.
An indication should also be provided of the services to which the persons accused of
having committed torture and/or other forms of ill-treatment belong;
• Information on the access of any complainant to independent and impartial judicial
remedy, including information on any discriminatory barriers to the equal status of all
persons before the law, and any rules or practices preventing harassment or
retraumatization of victims;
• Information on any officers within police forces and prosecutorial or other relevant
offices specifically trained to handle cases of alleged torture or cruel, inhuman and
degrading treatment or violence against women and ethnic, religious or other
minorities;
• Information on the effectiveness of any such measures.

Article 14
23. This article deals with the right of victims of torture to redress, fair and adequate
compensation and rehabilitation. The report should contain information on:
• The procedures in place for obtaining compensation for victims of torture and their
families and whether these procedures are codified or in any way formalized;
• Whether the State is legally responsible for the offender’s conduct and, therefore,
obliged to compensate the victim;
• Statistical data or, at least, examples of decisions by the competent authorities
ordering compensation and indications as to whether such decisions were
implemented, including any information about the nature of the torture, the status and
identification of the victim and the amount of compensation or other redress
provided;

• The rehabilitation programmes that exist in the country for victims of torture;
• Information on any measures other than compensation to restore respect for the
dignity of the victim, his/her right to security and the protection of his/her health, to
prevent repetitions and to assist in the victim’s rehabilitation and reintegration into
the community.

Article 15
24. Under this provision the State must ensure that statements made as a result of torture will
not be used as evidence in any proceedings, except against a person accused of torture as
evidence that the statement was made. The report should contain information on:
• Legal provisions concerning the prohibition of using a statement obtained under
torture as an element of proof;
• Examples of cases in which such provisions were applied;
• Information on whether derivative evidence is admissible, if applicable in the State
party’s legal system.

Article 16
25. This article imposes upon States the obligation to prohibit acts of cruel, inhuman or
degrading treatment or punishment. The report should contain information on:
• The extent to which acts of cruel, inhuman or degrading treatment or punishment
have been outlawed by the State party; information on whether these acts are defined
or otherwise dealt with in domestic law;
• Measures which may have been taken by the State party to prevent such acts;
• Living conditions in police detention centres and prisons, including those for women
and minors, including whether they are kept separate from the rest of the male/adult
population. Issues related to overcrowding, inter-prisoner violence, disciplinary
measures against inmates, medical and sanitary conditions, most common illnesses
and their treatment in prison, access to food and conditions of detention of minors
should, in particular, be addressed.

The salient features of sec. 176 of CRPC are :

The provision of sec. 176 of CRPC has international implications because it continues to be directly under supervision and monitering of United nations as mentioned above.
It is the independent judicial investigation.
This provision is cognisable, mandatory and statutory.
The Judicial Magistrate proceeds with the inference that death is unnatural. ( culpable homicide ).
…The burden is, clearly on the respondents to explain how the deceased sustained those injuries which caused his death. Unless a plausible explanation is given by the respondents which is consistent with their innocence, the obvious inference is that the fatal injuries were inflicted on the deceased in police custody resulting in his death, for which the respondents are responsible and liable.
Criminal Procedure Code, 1973 – Sec. 176 – Custodial death – Inquiry contemplated independently by magistrate and not jointly with police officer when role of police officer itself matter of inquiry – Joint inquiry report in case cannot made u/s. 176 CrPC and cannot be relied on as statutory report relating to cause of death
Joint inquiry report is stated to have been not made been u/s.176 CrPC and was not strongly relied on by the Additional Solicitor General as a statutory report relating to the cause of death. An inquiry u/s. 176 CrPC is contemplated independently by a Magistrate and not jointly with a police officer when the role of the police officers itself is a matter of inquiry…
[Nilabati Behera Alias Lalita Behera V. State Of Orissa;1993-(002)-SCC -0746 -SC
1993-(080)-AIR -1960 –SC;1993-(099)-CRLJ -2899 –SC] Full Bench SC.
Hon’ble Sessions Court or High Court can order further investigations if the report submitted suffers from any infirmity or doubt.
Who is going to bell the cat ? Bangladesh is going to bell the CAT.
September 11, 2009
A ruling party lawmaker Thursday moved two private members’ bills, including one seeking protection against torture, cruelty and custodial deaths, in parliament to help ensure rule of law in line within constitutional framework.
Saber Hossain Chowdhury piloted the bills styled Oppression and Custodial deaths (Prevention) Bill 2009 and Eviction of Slum Dwellers from Government Land (Prevention) Bill 2009 in the House.
Jatiya Sangsad speaker Abdul Hamid sent the bills to the parliamentary committee on private members’ bills and resolutions for further scrutiny.
“This is a very important and historical move that could contribute to resolving some of the most difficult problems of human rights violations in Bangladesh. The Asian Human Rights Commission supports this move wholeheartedly and call upon others to do so”, said Mr. Basil Fernando, the Director of AHRC
Previously in the matter of Judgement on Sections 54 & 167 of CrPC
Provisions relating to arrest, remand and detention require amendment to protect citizens’ rights

High Court Division (Special Original Jurisdiction),
The Supreme Court of Bangladesh,
Writ Petition No 3806 of 1998,
Bangladesh Legal Aid and Services Trust (BLAST)
and others.
Vs
Bangladesh and others,
Before Mr. Justice Md Hamidul Haque and Justice Salma Masud Chowdhury.
Date of Judgement: April 7, 2003.
Result: Rule is disposed with directions.
Hon’ble Court made the following recommendation:
Recommendation-C
(With regard to section 176 of CrPC)
Existing sub-section (2) be re-numbered as sub-section (3) and the following be added as sub-section (2).
(2) When any information of death of a person in the custody of the police or in jail is received by the Magistrate under section 167(4)(e) of the Code (as recommended by us), he shall proceed to the place, make an investigation, draw up a report of the cause of the death describing marks of injuries found on the body stating in what manner or by what weapon the injuries appear to have been inflicted. The Magistrate shall then send the body for post mortem examination. The report of such examination shall be forwarded to the same Magistrate immediately after such examination.
Recommendation-D
(With regard to section 202 of CrPC)
1. A new subsection (3) be added with the following provisions:
(3) (a) The Magistrate on receipt of the post mortem report under section 176(2) of the Code (as recommended by us) shall hold inquiry into the case and if necessary may take evidence of witnesses on oath.
(b) After completion of the inquiry, the Magistrate shall transmit the record of the case along with the report drawn up under section 176(2) (as recommended by us), the post mortem report, his inquiry report and a list of the witnesses to the Sessions Judge or Metropolitan Sessions Judge, as the case may be and shall also send the accused to such Judge. ( Power to arrest ).

“The pulse is a reflection of the heart’s condition”

‘More encounters in Gujarat than in Naxal-hit states’
Ahmedabad: Throwing open the floodgates of angst and frustration, retired director general of police RB Sreekumar spoke his mind on the fake encounters issue. Highlighting that Gujarat has witnessed more encounters in five years than the Naxal-infested 120 districts of the country or the terrorist-hit northern states, the veteran cop emphatically stated that the government had no locus standi to appeal or disregard the findings of Justice SP Tamang in the Ishrat Jahan encounter. “Questioning Justice Tamang’s report is contempt of court and questioning the freedom of the judicial system,” he said.
Sreekumar further said, “Jaynarayan Vyas’ comment that the judge has shown his unnecessary interest is insubordination, highly objectionable and contempt of court. Even the chief minister or the governor have no powers to comment on judicial magistrate’s inquiry process, only the sessions judge and the high court can comment on it, he said. “The government is not the party in this case; Magistrate Tamang has not given any opinion against the government, then why is the government saying suo moto that it does not agree with the report,” he asked, adding why they (govt) should, when they are not party in the case.
Sreekumar was additional DGP (Intelligence) from April 9, 2002 to Sept 18, 2002. Talking about motive of such encounters he said, “What was the motive of the encounters? Had Gujarat police followed the procedures according the regulation, after the encounters? Encounters started on September 24, 2002, after my transfer as addl DGP and completed in April 2007, when Vanzara and other officers were arrested.
Some one should try to trace the Gangotri (the root) of all these incidents. Gujarat government, through Gujarat police, had adopted the encounters as a part of a policy and a political strategy.” Referring to a semi-official diary, which he prepared in 2002, the retired cop said, “I have an entry of May 2002 in my diary that Subbarao, who was the then chief secretary, had also been given six months extension and six years of special appointment in state government. He had asked me to kill people in encounters and I had told him that if I even agree with him, I will be convicted under IPC 120 (B) for conspiracy for murder and I denied.”
Sreekumar also alleged that the Gujarat police had not followed the procedures mentioned in rule 217 of Gujarat Police Manual Volume-3, which says what the police are supposed to do after the encounters. If there is case of death in police custody, immediate inquiry should be done by the District Magistrate. But in any of the encounter cases, these procedures have not been followed.”
Courtsey : DNA -English News Paper: 10th September 2009 Ahmedabad / Surat Edition.

Stop Encounters…
THE CENTRE has now filed an affidavit in the Ishrat Jahan killing to support her mother’s call for a Central Bureau of Investigation (CBI) enquiry. And to counter the claim of the Gujarat government that, in gunning down the teenaged student and her friends in 2004, it had acted on the advice of the Centre. But you said they were Lashkar-e-Tayyaba (LeT) terrorists, said the Bharatiya Janata Party (BJP) state government to the Congress-led Centre. We merely talked of a tip off, said the Centre.
The affidavit, said home minister P.Chidambaram, “did not give a licence to the state government to kill innocent people”.
Curiously, instead of focusing on the illegal and immoral act of staging an encounter, the debate now seems to be centered around whether or not the youngsters were terrorists. “The LeT’s official website has claimed that all four were their agents, then why is the Government of India trying to prove the contrary?” argued BJP spokesperson Rajiv Pratap Rudy.
Adding, “It seems the institution of the Intelligence Bureau (IB) is under threat”.
Sadly, the danger is far greater. It is not the IB, or any particular government or any political party, but the very idea of democracy that is under threat. By sidestepping the main issue of individual freedoms and right to life and offering fullthroated non-arguments about “terrorists”, we are hitting at the very foundation of our democratic state. Whether the victim of an extra-judicial killing deserved to be killed or not is not the point. In a democratic state we need accountability and fair treatment.
Without which we cannot hope for justice.
Ishrat’s case was a fake encounter, ruled Gujarat Metropolitan Magistrate S.P. Tamang. It appears that Ishrat Jahan, 19, Javed Ghulam Sheikh, 19, Amjad Ali, 25, and Jisan Johar, 17, were not linked to any terror group and were killed in cold blood by the state. The Gujarat police kidnapped them from Mumbai, brought them to Ahmedabad, murdered them in custody, lined up their bodies on the streets at night, planted weapons on them and pretended they were Pakistansupported LeT terrorists who had come to kill Narendra Modi. The fiendish cops were led by D.G. Vanzara, then DIG (now in jail for faking the “encounter” killing of Sohrabuddin and his wife Kauser Bi) and his deputy N.K. Amin, along with several other top police officers including then Ahmedabad police commissioner K.R. Kaushik and the then chief of the Crime Branch, P.P. Pandey.
And what are we, the people with a voice, the students, the media, the aam janata that keeps democracy in motion doing about such calculated murders? What do we do when we see justice being thrown out of the ring as politicians wrestle with mob sentiments and twisted reasoning, much like the monstrous men in a WWF wrestling match? We cheer them on. They play to the gallery and we, the gallery, play along. Because it is the laziest thing to do. It’s easy for us to accept victims of encounters as terrorists and to support their murder. We skip all the steps between an “encounter killing” and its justification. First, was it a real encounter or a staged killing? Second, if real, was killing the only option? Third, was the victim a truly dangerous criminal or armed terrorist? And finally, did the victim really deserve to die? There could be several more steps between the killing and the justification, but that doesn’t concern us. We ignore the process and base our support on assumptions. Here’s our lazy logic.
First, the victim was an armed terrorist. Second, he must die to make us safe. Third, the police killed him to protect us. Finally, the police must be hailed as heroes.
This social sanction allows the police to get away with murder.
Exactly a year ago, we saw the “encounter” at Batla House near Delhi’s Jamia Millia University that killed two youngsters. Encounter specialist M.C. Sharma was killed in the incident, apparently shot by the “terrorists”. The media served up the police version almost verbatim, hailing the heroic Sharma as a braveheart killed by “terrorists”, zealously demanding bravery awards for the hero and denouncing the boys killed and captured by the cops. The boys, some of them students at Jamia, were from Azamgarh district of Uttar Pradesh, which the media promptly renamed Atankgarh (terror-fort). And except for a couple of notable exceptions, made no attempt to probe the holes in the police theory. The boys were presumed guilty, thus their killing was justified and their assumed killer made the superhero. Never mind that Sharma had been in fake encounters before, like the one at Ansal Plaza where two people were murdered and passed off as Pakistani terrorists — in fact as members of the LeT, like Ishrat and friends.
The police do seem to have this nasty habit of killing Muslims and passing them off as Pakistani terrorists. But if you thought not being a Muslim protected you from such “encounters”, think again.
They could pretend you were an armed criminal. Like they did with Ranbir Singh, 24, the management student killed in Dehradun in August. Or they could pretend you were linked to extremists, like they did when they killed Chungkham Sanjit and the young and pregnant Rabina in Imphal in July. It’s easy to get away with murder in Manipur, like elsewhere in the neglected Northeast. The security forces, with their special impunity in the troubled states, can murder, rape and torture at will.
And that is a power they are willing to share in Naxalite-dominated regions. Vigilante groups armed and empowered by the state are joining in these extra-judicial killings while we sigh about the “Naxal menace”. There are thousands of encounter killings around the country, from Kashmir to Andhra Pradesh, Gujarat to Chhattisgarh and Assam, and we support it all out of sheer laziness. Some of those killed may be Naxals, some may even be terrorists. But most are not. The point is not whether the victims were innocent or culpable.
But whether they got justice. That’s the only way to protect our human rights. Due process of law, which is tossed aside through security measures like encounter killings and tough terror laws, must be respected if we are to keep ourselves and our democracy safe.
We must stop supporting instant justice by the police. Because we cannot be a nation of lynch mobs.
And finally it is fair procedure -and not murderous cops — that protects us and all that our nation stands for.
ANTARA DEV SEN is editor of The Little Magazine. She can be contacted at: sen@littlemag.com

EMAIL: sen@littlemag.com