Madras HC | “Every time a custodial death occurs, legitimacy of State suffers a big dent”; Judicial Magistrate to ensure that family of deceased be given access to see body & allowed to access photos and videos

Madras High Court:  G.R. Swaminathan, J., observed that,

What the government does must inspire the confidence of the people. Every time a custodial death occurs, the legitimacy of the State suffers a big dent.

Factual Matrix

Petitioner a permanent resident belonged to a scheduled caste community. His elder brother fell in love with a relative namely, Punitha and in view of the objection raised by her parents, he started residing elsewhere. Punitha’s family complained as if had been abducted.

Since the elder brother and Punitha could not be traced, petitioner and other members of the family were periodically directed to appear for enquiry before the investigating officer. Further, petitioner alleged that all the family members were subjected to physical abuse.

It was further stated that, local police arrived at the petitioner’s house and several times and had beaten up the petitioner, his youngest brother i.e. Ramesh on the next visit. The younger brother of the petitioner was taken in custody and later he did not return home.

Suicide

Ramesh was found hanging, according to the petitioner he was tortured by the local police and he died as a result.

In order to cover up the crime, police made the above-stated incident appear as if he had committed suicide.

A complaint was registered under Section 174(3) of CrPC.

The petition had been filed seeking a direction to the respondents to exhume the body and conduct a second postmortem.

Court had directed for conducting the second postmortem at the burial itself. The entire second postmortem was also directed to be videographed. Hence, the second post-mortem was done accordingly.

The entire autopsy had been duly videographed and even a statement was made in writing to that effect in the status report, it turned out that what was recorded were only brief clippings.

Custodial Death

It has been stated that a proper videograph was not taken at all and in view of the same petitioner’s counsel insisted that appropriate directions will have to be issued for the future observance and strict compliance in cases of custodial death or where it is alleged that the death is due to police torture.

Bench referred to the Division Bench of this Court in a PIL in WP (MD) No. 78 of 2019, decided on 28-09-2020.

Further, the Court stated that,

“…foundations of any democratic government rest on popular acceptance. Though State primarily functions through its coercive apparatus, its actions must be perceived as proper by the people.”

“A dead person is equally entitled to justice. I would call it posthumous justice.”

Court also observed that, Whenever someone suffers an unnatural death, the circumstances that led to it will have to be unearthed. Otherwise, there would be no closure.

To ensure the above stated, Court issued the following directions:

(i) The Judicial Magistrate conducting the enquiry under Section 176(1)(A) CrPC shall ensure that the family of the deceased or its representatives are given access to see the body both front and back and are also allowed to take video and photos.

(ii) No autopsy shall take place or commence without the next of kin having seen the body. Of course, if the family of the deceased refuses to see the body, even after so being permitted by the concerned Judicial Magistrate conducting the enquiry, the Judicial Magistrate can, in writing, permit the conducting of postmortem.

(iii) The autopsy shall be carried out by a team of two doctors who have a master’s degree in forensic medicine and are attached to a Medical College and Hospital in the State. In other words, what is called forensic autopsy must be conducted.

(iv) The autopsy shall be done by adhering to the norms laid down by the Hon’ble Division Bench in V. Eswaran v. Government of Tamil Nadu, dated 16-04-2019 in W.P. No. 10694 of 2019 and in W.P.(MD)No. 78 of 2019, dated 28-09-2020.

(v) The whole body shall be x-rayed in order to find out if there are any fractures. The entire autopsy should be videographed from the start of the examination till its completion by adhering to the following six phases set out in Modi ‘a Textbook of Medical Jurisprudence and Toxicology’ 26th Edition edited by Justice K.Kannan.

vi) The autopsy report should be prepared expeditiously and handed over to the investigating officer in the case so that the filing of the final report is not delayed. A copy of the autopsy report as well as video should be simultaneously given to the legal heir or representatives of the family of the deceased. This alone will enable them to take recourse to legal remedies immediately. 

If after receipt of the autopsy report, the legal heir/representatives of the deceased family give in writing that they intend to move the High Court, the body shall be preserved in the mortuary for at least 48 hours. If the body is disposed of either by cremation or otherwise in the meanwhile, the very purpose of holding a second post-mortem will be rendered infructuous.

While parting with the decision, Court stated that:

All of us know that hasty cremation in the tragic Hathras gang rape case led to controversy. It is in the interest of the police to take the family of the deceased into confidence and avoid rushing things through. They are stakeholders in the process and the police have to treat them accordingly.

Court allowed the petition with the aforesaid directions. [Santhosh v. District Collector, Madurai District; 2020 SCC OnLine Mad 5541, decided on 02-12-2020]

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