Case BriefsHigh Courts

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]

Case BriefsHigh Courts

Calcutta High Court: A Division Bench of Sanjib Banerjee and Arijit Banerjee, JJ., directed the State to ensure that there is no use of firecrackers at all during Diwali celebrations and Kali Puja.

The instant application was filed in regard to the upcoming celebrations. There was another application by an unregistered body that could be loosely called the firecrackers’ association.

Verbal Advisories | Firecrackers

State has issued verbal advisories pertaining to firecrackers during Kali Puja and Diwali celebrations. Guidelines were framed regarding Kali Puja pandals.

State had made an appeal for all kinds of firecrackers not to be used this year in view of pandemic and the virus that attacks the respiratory system.

Further, the State submitted that the matter pertaining to firecrackers was still pending before the National Green Tribunal and orders have been reserved. In view of the same, State suggested that in the light of such specialised body having taken up the matter pertaining to firecrackers all over the country, such aspect may be left to the Tribunal and not gone into in the present proceedings.

In addition to the Kali Puja, Jagadhatri Puja and Kartick Puja pandals, the petitioners referred to the congregations on the day of Kali Puja at temples all over the State. The petitioners sought appropriate directions for the maintenance of Covid protocol in temples and for crowding not to be allowed within close spaces.

In view of notifications issued from time to time by the Centre that relaxations have been made for open-air congregations, though the wearing of face-masks or the use of face-shields has been made mandatory. Stricter protocols are required for gatherings indoors.

Since public Kali pujas are many more than Durga pujas and some of the pandals are much smaller, the guidelines issued for Durga Puja pandals are somewhat modified as follows:

(i) All pandals will continue to be No-Entry Zones, including an area of five-metre beyond the pandals on all the open sides. Only dhakis will be permitted to occupy the space beyond the pandals and within the five-metre zone thereafter. Except for dhakis, the five-metre zone has to be kept completely free at all times.

(ii) For the smaller pandals, where the covered area excluding the dais is upto 150 square metre, only 10 persons may be in such covered area at any given point of time. For pandals with a covered area between 150 square metre and 300 square metre excluding the dais, the number of persons at any point of time may be 15. For bigger pandals, in excess of 300 square metre in area excluding the dais, a maximum of 45 persons can be within the pandals at any given point of time.

(iii) Sanitisers must be available at the puja pandals and wearing of masks will be mandatory within and around the pandal area. The distancing norm has to be maintained at all times both within the pandals and in an around the pandals.

(iv) Immersions should be low-key affairs and processions for such purpose will not be permitted. The use of bands and lights at the time of immersion will also remain prohibited. It will be open to the local police to provide for staggered timings so that the immersion ghats are not overcrowded.

Firecrackers

Bench stated that the State should ensure that there is no use or display or bursting of firecrackers at all during the Kali puja and Diwali celebrations. Only wax or oil-based diyas would suffice, for the greater good of the citizens and in the larger public interest.

“…direction as to firecrackers will be effective all over the State and will cover not only the Kali Puja and Diwali celebrations, but also the Chhat Puja, Jagadhatri Puja and Guru Nanak’s birthday celebrations thereafter.”

Court directed the police to ensure that there is no sale or purchase of firecrackers in any form in the State between now and the end of the month and any kind of like material which has the potential to pollute the air shall be confiscated.

State will ensure that no firecrackers of any kind are brought into the State, except for immediate transit to another State.

As far as the application by the firecrackers’ association is concerned, it will be for the State to consider whether appropriate compensation or other measures can be taken.

For the greater good, a small number of persons involved in the firecracker business may have to suffer losses. The overwhelming public interest cannot be compromised.

Bench also stated that local police should ensure that COVID protocol is maintained in the temples including the distancing norms.

Local administration and police will ensure that there is no overcrowding within the temple precincts or outside.

For the other aspects, particularly with regard to the Chhat Puja and the kind of processions that may be allowed for Chhat Puja celebrations, the matter has been posted for 10-11-2020. [Anasua Bhattacharya v. State of W.B., 2020 SCC OnLine Cal 2056, decided on 05-11-2020]