Saturday, 27 September 2008



A vegetable vendor named Moyfar Raja, aged about 45 years, son of late Tajamul Ali, of Village Baldabaldi Part-II, P.O. Jamira under the police outpost of Jamira within the jurisdiction of Katlichera Police Stattion in Hailakandi, Assam was arrested at about 11am on 10 June, 2008 by Pijush Kanti Roy, in-charge of Jamira outpost and allegedly was tortured to death at 5 pm the same day. This information was published in local newspapers on 11 June, 2008.

Having learnt from the newspapers about the incidence, Barak Human Rights Protection Committee formed a fact-finding team. The facts stated herein are based on the preliminary report of that team.

Moyfar Raja, the deceased belonged to the poorest stratum of the society. He worked as a daily wage labourer and sometimes as a vegetable vendor. He was supporting his wife, 3 sons and 3 daughters with livelihood. According to his relatives and neighbours, he was generally a peace loving and law abiding citizen, though there was a police case pending against him.

Family members of the deceased state that he, as usual, he went to Jamira Bazar in the morning on 10 June, 2008 to sell his vegetables. They were later informed that a police team comprising of constable Bashir Uddin and Home Guard Nijam Uddin Laskar led by Sub-Inspector Pijush Kanti Roy, in-charge of Jamira Outpost picked him up. According to them, the police team was going somewhere else but when they saw the deceased they nabbed him. Legal procedure of arrest was not observed properly. Requirements of arrest issued by the Supreme Court of India in D K Basu Vs. State of West Bengal (AIR 1997 SC 610) were not fulfilled. The guidelines regarding arrest issued by the National Human Rights Commission also were not complied with. Even no 'arrest memo' was prepared, it was revealed during the said fact-finding efforts of BHRPC.

Family members of the deceased and his other companion vegetable vendors alleged that the police team started to beat him with cane sticks in front of them. They continued to do so along the way to the police outpost and even in the lock-up. At about 2 pm when his condition became critical due to a serious head injury sustained during the beatings by police, he was taken to Jamira Primary Health Centre. Doctors at the health centre referred him to Hailakandi Sontosh Kumar Roy Civil Hospital due to the seriousness of his condition. Dr. Rehana Begum, a doctor at the H S K R Civil Hospital states that the deceased was received at the hospital at about 5 pm and he was found in coma and it was also observed that he had a serious injury in the head. He died on the stretcher while he was being taken to the ward.

On the other hand, the police alleged that the deceased was wanted in connection with Katlichera police station case No. 70/03 which was registered under sections 147, 148, 149, 323, 427 and 302 of the Indian Penal Code, 1860. There was also a non-bailable warrant against the deceased issued by the Additional Chief Judicial Magistrate of Hailakandi in connection with G R Case No. 545/03, which was registered as a result of the said FIR. Constable Bashir Uddin and home guard Niajm Uddin laskar alleged that soon after the arrest the deceased complained of his ill-health. But there is no answer to the question as to why the deceased was not sent for medical examination and treatment as law also mandates it.

It appears that there were serious charges against the deceased. But allegations of offences, howsoever serious they may be, do not render a person bereft of his basic human rights. Crimes on the person of an accused or suspect are equally prohibited as in the case of any other persons. Facts alleged before the BHRPC team prima facie establish a case of torture and murder attracting punishment under section 302 and 34 of the IPC. Such cases fall under sections 154 and 174 of the Code of Criminal Procedure, 1973. Section 154 mandates the officer-in-charge of a police station to register an FIR on receiving information about commission of a cognizable offence and section 174 enjoins upon such officer a duty to report the case to the nearest magistrate if he receives information that "a person has committed suicide, or has been killed by another or by an animal or by machinery or by an accident, or has died under circumstances raising a reasonable suspicion that some person has committed an offence" relating to the death. This procedure is prescribed by law to ensure impartial and prompt investigation into the incidence and thus to facilitate the prosecution and conviction of the offender.

This incidence of custodial death amounts to extra judicial killing, which flagrantly violates rule of law, basic features of the Indian Constitution and Articles 21 and 22 of the Constitution as interpreted by the Supreme Court of India.

This incidence is also a gross violation of the international obligation of the state of India, which has bound itself under various human rights treaties and other instruments, such as Articles 3 and 5 of the Universal Declaration of Human Rights. India is a party to the International Covenant on Civil and Political Rights, 1966 and it is the obligation of the state of India under Article 2 of the covenant "to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present covenant". Article 6 of the Covenant recognizes right to life stating, "Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life." The present case clearly shows the failure of Indian state to respect its obligation under this Article. Moyfar Raja was deprived of his life arbitrarily by its agents. The case also attracts Article 7 of the covenant, which reads, "No one shall be subjected to torture or cruel, inhuman or degrading treatment or punishment". The United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which India is a signatory, defines torture in its Article 1 as " any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity". No further analysis is needed to show that this case falls under the definition. In spite of the fact that torture is universally prohibited, the Supreme Court of India held that the right to freedom from torture is also inherent in Article 21 of the Constitution.

The phenomenon of custodial death was brought before the Supreme Court in many cases. The Court issued 11 requirements to be fulfilled in cases of arrest in order to mitigate this evil in D K Basu Vs. State of West Bengal (AIR 1997 SC 610). While issuing he requirements the Supreme Court observed, "the custodial death is perhaps one of the worst crime in a civilized society governed by the rule of law. The rights inherent in Articles 21 and 22 (1) of the Constitution require to be zealously and scrupulously protected. Court cannot wish away the problem. Any form of torture or cruel inhuman degrading treatment would fall within the inhibition of Article 21 of the Constitution. Whether it occurs during the interrogation or otherwise. If the government becomes law-breakers it is bound to breed contempt for law and would encourage lawlessness to become law unto himself thereby leading to anarchism. No civilized nation can permit that to happen". As stated above the requirements pronounced in this landmark judgment was not observed in the present case. No arrest memo was prepared as it is prescribed in requirement No 2.

The National Human Rights Commission has also dealt with the cases of custodial death and issued guidelines regarding arrest and also prescribed procedure in cases of custodial deaths/rapes. It is obvious that NHRC guidelines regarding arrest were not followed in this case.

Justice M N Venkatachalia, Chairperson (as he was then), NHRC sent letters to all chief ministers vide letter No. No. NHRC/ID/PM/96/57 dated March 27, 1997 reminding them of a circular of the commission issued on the 14th December, 1993 requiring all the District Magistrates and the Superintendents of Police to report to the Commission, incidents relating to custodial deaths and rapes within 24 hours of their occurrence. He also stated that "if post-mortem examination is not thoroughly done or manipulated to suit vested interests, then the offender cannot be brought to book and this would result in travesty of justice and serious violation of human rights in custody would go on with impunity." He continued, "with a view to preventing such frauds, the Commission recommended to all the States to video-film the post-mortem examination and send the cassettes to the Commission." The Commission also prescribed a model autopsy form and additional procedure for inquest, which were annexed to the said letter.

Justice Ranganath Misra, Cairperson of NHRC (as he was then), also sent "letters to Chief Ministers of States on the video filming of post-mortem examinations in cases of custodial deaths" dated August 10,1995. These recommendations require (i) informing NHRC regarding custodial deaths or rape within 24 hours of occurrence, (ii) Vedio-filming of post mortem and (iii) prompt and impartial magisterial enquiry. Usually these requirements are not followed in Assam. If a magisterial enquiry was ordered, the report never sees daylight in most of the cases. Where the report is made public, it happens in rare cases, it is too late to have any effect. Such magisterial inquiry is no longer seen by the people as having trustworthiness. As the saying goes, 'justice should not only be done but it should also seemed to be done', this incidence requires a prompt judicial probe.

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