Torture in India 2009

163 Pages·2009·3.48 MB·English

by  Asian Centre for Human Rights

TORTURE
A C H R
IN INDIA 2009
ASIAN CENTRE FOR HUMAN RIGHTS
(ACHR has Special Consultative Status with the UN ECOSOC)
C-3/441-C, Janakpuri, New Delhi - 110058, India
AA
Phone/Fax: [phone]
CC
Website: www.achrweb.org
HH
Email: [email protected]
RR
Asian Centre For Human Rights
TORTURE IN INDIA 2009
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TORTURE IN INDIA 2009
First published June 2009
Cover Photos Coutesy: http://media.photobucket.com/image/torture%20
india/Nitajk/september%202007/october%2007/tehelka.jpg
Acknowledgement: This report is being published as a part of ACHR's
“national Campaign for Prevention of Torture in india” - a project funded
by the European Commission under the European initiative for Human
Rights and Democracy (EiDHR) – the European Union’s programme that
aims to promote and support human rights and democracy worldwide.
The views expressed are of the ACHR, and not of the European Commission.
COnTEnTs
1. FOCUs OF 2009: TORTURE AnD DEATHs in POliCE CUsTODy AnD
FAilURE OF THE Dk BAsU JUDGMEnT ....................................................1
2. TORTURE in POliCE CUsTODy .................................................................22
i. Patterns and practices of torture in police custody ........................................22
A. Custodial deaths ...........................................................................................22
B. Torture to extract confessions .......................................................................29
C. Torture resulting from a failure to pay bribes ...............................................32
ii. Custodial torture of women ..........................................................................33
iii. Custodial torture of children .......................................................................36
iV. Medical acquiescence ..................................................................................39
V. Police reform and impunity ..........................................................................42
3. TORTURE in THE CUsTODy OF THE ARMED FORCEs .........................45
4. TORTURE By ARMED OPPOsiTiOn GROUPs ..........................................47
5. TORTURE in JUDiCiAl CUsTODy .............................................................50
6. TORTURE By OTHER nOn-sTATE ACTORs .............................................54
A. Torture by the Upper Castes .........................................................................55
B. Use of torture by caste/ village Panchayats ..................................................56
7. JUDiCiAl inTERVEnTiOns AGAinsT TORTURE ...................................58
A. Judgements awarding compensation ............................................................58
B. Judgements awarding punishments ..............................................................62
8. nHRC’s FAilURE TO ADDREss TORTURE ..............................................69
A. Failure to recognize torture ..........................................................................69
B. serious procedure failings ............................................................................72
Cases pending for adjudication before the appropriate courts ..........................74
Orders of the Delhi High Court against procedural failings .............................75
C. Denial of opportunity of being heard ...........................................................77
D. Failure to verify the post mortem reports .....................................................87
9. sCRUTiny By THE UniTED nATiOns ......................................................89
AnnEx : lisT OF ViCTiMs OF DEATH in POliCE
CUsTODy FROM 1sT APRil 2001 TO 31sT MARCH 2009 ..........................97
n Andhra Pradesh ............................................................................................97
n Arunachal Pradesh ......................................................................................101
n Asom ...........................................................................................................102
n Bihar ...........................................................................................................105
n Chandigarh ..................................................................................................107
n Chhattisgarh ...............................................................................................108
n Dadra & nagar Haveli.................................................................................109
n Delhi ............................................................................................................110
n Goa ...............................................................................................................111
n Gujarat .........................................................................................................112
n Haryana .......................................................................................................117
n Himachal Pradesh ........................................................................................119
n Jammu and kashmir ...................................................................................120
n Jharkhand ...................................................................................................121
n karnataka ...................................................................................................123
n kerala ..........................................................................................................125
n Madhya Pradesh .........................................................................................127
n Maharashtra ................................................................................................129
n Manipur ......................................................................................................136
n Meghalaya ..................................................................................................137
n Orissa ..........................................................................................................138
n Puducherry ..................................................................................................139
n Punjab .........................................................................................................140
n Rajasthan ....................................................................................................142
n sikkim .........................................................................................................144
n Tamilnadu ...................................................................................................145
n Tripura ........................................................................................................148
n Uttarakhand ................................................................................................149
n Uttar Pradesh ..............................................................................................150
n West Bengal .................................................................................................155
1. Focus of 2009: Torture and deaths in police
custody and failure of the DK Basu judgment
Torture in police custody is rampant in india. it is a pervasive problem that pre-
dates this report. The state and the police remain in worrying denial. The annual
reports, Crime in India, of the national Crime Records Bureau of the Ministry of
Home Affairs that report very few deaths in police custody reflect this disturbing
denial.1
The evidence presented in this report is under consideration of various courts and
the national Human Rights Commission (nHRC). The evidence underlines that
torture by the police is rather a serious problem in india.
National Human Rights Commission Guidelines
in recognition of the scale of the problem of use of torture, on 14 December 1993,
the national Human Rights Commission (nHRC) issued guidelines directing all
District Magistrates and superintendents of Police in every district to report to the
secretary General of the nHRC about custodial deaths/rapes within 24 hours.
The nHRC warned that: “Failure to report promptly would give rise to presumption
that there was an attempt to suppress the incident”.
Supreme Court Ruling in D.K. Basu Vs State of West Bengal
Moreover in a landmark judgment in 1996 in the case of D.K.Basu Vs State of West
Bengal, the Supreme Court laid down specific guidelines required to be followed
while making arrests with the aim to eliminate violations of human rights in police
custody. The principles laid down by the supreme Court are given hereunder:
“1. The police personnel carrying out the arrest and handling the interrogation of
the arrestee should bear accurate, visible and clear identification and name
tags with their designations. The particulars of all such police personnel
who handle interrogation of the arrestee must be recorded in a register;
2. That the police officer carrying out the arrest shall prepare a memo of arrest
at the time of arrest and such memo shall be attested by at least one witness,
who may be either a member of the family of the arrestee or a respectable
person of the locality from where the arrest is made. it shall also be counter
signed by the arrestee and shall contain the time and date of arrest;
3. A person who has been arrested or detained and is being held in custody in
a police station or interrogation centre or other lock up, shall be entitled to
1. see various annual reports, Crime in India, of the national Crime Records Bureau.
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TORTURE IN INDIA 2009
have one friend or relative or other person known to him or having interest in
his welfare being informed, as soon as practicable, that he has been arrested
and is being detained at the particular place, unless the attesting witness of
the memo of arrest is himself such a friend or a relative of the arrestee;
4. The time, place of arrest and venue of custody of an arrestee must be notified
by the police where the next friend or relative of the arrestee lives outside
the district or town through the legal Aid Organization in the District and
the police station of the area concerned telegraphically within a period of 8
to 12 hours after the arrest;
5. The person arrested must be made aware of his right to have someone
informed of his arrest or detention as soon as he is put under arrest or is
detained;
6. An entry must be made in the diary at the place of detention regarding the
arrest of the person which shall also disclose the name of the next friend
of the person who has been informed of the arrest and the names land
particulars of the police officials in whose custody the arrestee is;
7. The arrestee should, where he so requests, be also examined at the time of
his arrest and major and minor injuries, if any present on his/her body, must
be recorded at that time. The ‘inspection Memo’ must be signed both by the
arrestee and the police officer affecting the arrest and its copy provided to
the arrestee;
8. The arrestee should be subjected to medical examination by the 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
such a panel for all Tehsils and Districts as well;
9. Copies of all the documents including the memo of arrest, referred to above,
should be sent to the Magistrate for his record;
10. The arrestee may be permitted to meet his lawyer during interrogation,
though not throughout the interrogation; and
11. A police control room should be provided at all district and state headquarters
where information regarding the arrest and the place of custody of the
arrestee shall be communicated by the officer causing the arrest, within 12
hours of effecting the arrest and at the police control room it should be
displayed on a conspicuous notice board.”
Death in police custody statistics
The preventative actions of the supreme Court and the nHRC have not ended
deaths in police custody due to torture.
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TORTURE IN INDIA 2009
From 1 April 2001 to 31 March 2009, the deaths of 1,184 persons in police custody
were reported to the nHRC. An overwhelming number of these deaths had taken
place as a result of torture. Most of these deaths took place within 48 hours of the
victims being taken into custody by the police.
During this period (1 April 2001 to 31 March 2009), the highest number of custodial
deaths was reported in Maharashtra (192 cases) followed by Uttar Pradesh (128),
Gujarat (113), Andhra Pradesh (85), West Bengal (83), Tamil nadu (76), Assam
(74), karnataka (55), Punjab (41), Madhya Pradesh (38), Bihar and Rajasthan
(32 each), Haryana (31), kerala (30), Jharkhand (29), Delhi (25), Orissa (24),
Chhattisgarh (23), Uttarakhand and Meghalaya (16 each), Arunachal Pradesh
(11), Jammu and kashmir and Tripura (9 each), Puducherry and Chandigarh (3
each), Himachal Pradesh (2) while Manipur, Goa, sikkim, and Dadra & nagar
Haveli recorded one case each.
The above figures do not represent the actual number of deaths in police custody
in india. A number of cases of custodial death taken up by Asian Centre for Human
Rights (ACHR) with the nHRC show that the nHRC was not informed by the
police about these custodial deaths by the police. some of these cases include
custodial deaths of Tsering Tondup of leh in Jammu and kashmir (nHRC File no.
27/9/9/07-08-AD); Boya Venkatanna of Andhra Pradesh (nHRC no. 6/1/2003-
2004-AD); Harilal yadav of Uttar Pradesh (nHRC no. 704/24/2003-2004-CD);
Jarupula srinu of Andhra Pradesh (nHRC no. 60/1/2005-2006- AD-sCn); and
Dwipen Bayan of Assam (nHRC no.133/3/2004-2005-AD). The nHRC has
expressed its anguish against the failure to report these cases of custodial death to
the NHRC but the NHRC's guidelines continue to be flouted.
The above cases of deaths in police custody also do not include deaths in the
custody of the armed forces and the indian Army under the control of the Central
government. The nHRC directions for reporting incidents of custodial deaths were
issued to the police only as the nHRC does not have jurisdiction to investigate
violations committed by the armed forces under section 19 of the Human Rights
Protection Act, 1993. However, there have been regular reports of deaths in the
custody of the armed forces and the indian Army. Asian Centre for Human Rights
itself has filed 50 complaints of extrajudicial killings with the NHRC from 2003
to 2009. Many of these alleged extrajudicial killings were indeed deaths in the
custody of the Manipur Commandos under the Manipur Police. since the Manipur
Commandos claim to be conducting operations jointly with the central armed
forces, the deaths in the custody of the Manipur Commandos are not reported to
the nHRC. not surprisingly, the nHRC has recorded only one custodial death
case in the last eight years from Manipur.
nonetheless, the high incidence of deaths in police custody also expose that the
guidelines of the Dk Basu Judgment do not appear to be working.
Further, one of the key failures of the Dk Basu guidelines is that its compliance
is confined only to cases of arrests made under Sections 41 (When police may
ACHR 3
TORTURE IN INDIA 2009
arrest without warrant) and 74 (Warrant directed to police officer) of the Code
of Criminal Procedure, 1973 (as amended up to date). The Dk Basu Guidelines
effectively come to play only during and from the time of arrest.
in india numerous suspects are detained daily on summons as provided under
section 175 (Power to summon persons) or without a formal summon by sending
a message to the person to appear before a police officer. The latter is illegal but
nonetheless a regular practice.
interrogations conducted by the police under these circumstances are not arrests,
in the legal sense, and therefore, do not require compliance with the D k Basu
guidelines. These provide legal loopholes for abuse as is highlighted in the cases
stated below. A number of persons who are summoned or detained illegally are
subjected to torture and killed in police custody.
Asian Centre for Human Rights highlights the following cases of custodial deaths
in which the victims died after being taken into custody without being formally
arrested. The victims were summoned by the police or held in illegal detention.
Case studies
1. Custodial death of Md Jaleel, Andhra Pradesh2
On 26 August 2004, the nHRC received information from the Collector &
District Magistrate, Warangal in Andhra Pradesh about the custodial death of
Md. Jaleel (son of Bandeli, resident of Malkapur village, Ghanpur, Warangal
district) in police custody. The post mortem report found that he died due to acute
Pancreatitis, a natural death. The Magisterial Enquiry did not find foul play or
medical negligence.
According to the police, 25-year-old Jaleel was taken into police custody on
25 August 2004 in connection with case no. 271/2004. He died on 26 August
2004 in MGM Hospital, Warangal. During the enquiry the family of the victim
claimed that Jaleel was, in fact, arrested by the police on the evening of 24 August
2004. The police provided records showing his arrest on 25 August 2004 at 0245
hours.
On 9 December 2006, the nHRC asked the Director General of Police (DGP),
Andhra Pradesh to initiate a Criminal investigation Department (CiD) inquiry and
take appropriate action on the outcome of such enquiry. The Commission further
directed the DGP, Andhra Pradesh to send the report of the CiD enquiry along
with Action Taken Report within six weeks.
2. nHRC Case number: 424/1/2004-2005-CD
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2. Custodial death of Amit Kumar, Bihar3
On 8 november 2003, Amit kumar (son of yogendra Prasad singh, resident of
kankar Bagh police station, Patna, Bihar) died in police custody in Patna as a
result of torture. The police claimed that the victim was beaten up by unknown
persons prior to his arrest on 8 november 2003 and a case (nO.503/03 dated
8.11.03 u/s 147/149/323/307 iPC) was registered against 30-40 unknown persons
for assaulting Amit kumar.
The victim’s father yogendra Prasad singh, sub inspector of Bihar Police (nHRC
complaint dated 8 December 2003) alleged that Amit kumar was arrested by the
special Task Force (sTF) on 7 november 2003 at 3 pm from Taramandal. He
claimed that in an earlier posting as sub inspector Mr Prasad singh had a dispute
with Arshad Zamal, the Deputy superintendent of Police (DsP) now posted at
sachivalaya. When DsP Arshad Zamal found out Amit kumar was his son, he
was taken to Ekta Bhawan and Zamal and other members of the sTF tortured
him.
The victim was admitted to Patna Medical College Hospital on 7 november 2003.
On 8 november 2003, the victim’s family shifted him to Rajeshwar Hospital and
then to Magadh Hospital where he died on 8 november 2003 at 6.05 pm. Mr
singh alleged that the sTF made up a story about his son’s beating by unknown
persons and registered a case nO.502/03 against unknown person to cover up.
The response to the nHRC (the inquest-cum-Magisterial Enquiry Report)
confirmed that the victim died in the manner alleged by the family.
There were inconsistencies in the police record of events. The nHRC stated that
the medical records show that the victim was examined at Patna Medical College
Hospital on 7 november 2003 at 6.55 pm after being brought to the hospital by
B. Dayal, DsP, sTF and Arshad Jamal, DsP, sachivalaya. This contradicts the
claims of the police who alleged that he was arrested on 8 november 2003 at 6
pm (case nO.502/03).
The nHRC concluded that the victim died in police custody and directed the
authorities to investigate the case by Crime Branch-Criminal investigation
Department (CB-CiD) and also served a show cause notice to the Chief secretary,
government of Bihar as to why interim compensation should not be awarded to
the next of kin of the victim.
3. Custodial death of Parmeshwar Dayal, Delhi4
On 15 March 2005, 28-year-old businessman Parmeshwar Dayal died in police
custody in the shanti nagar area of north-west district of Delhi.
3. nHRC Case number : 3052/4/2003-2004-CD
4. nHRC Case number 5061/30/2004-2005-CD
ACHR 5