Custodial deaths of Jeyaraj and Fenix: Legal recourse available to arrest accused Tuticorin cops

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In Prakash Kadam & Etc. Etc versus Ramprasad Vishwanath Gupta & Anr on 13 May, 2011, the Supreme Court held that policemen found guilty of fake encounters should be given the death penalty, treating it as a ‘rarest of rare’ case. The court observed:

“Policemen are persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary people, ordinary punishment should be given, but if the offence is committed by policemen much harsher punishment should be given to them because they do an act totally contrary to their duties.”

So, if the accused in the 2012 Delhi gangrape case were hanged, the accused cops in the Tuticorin case should face the same fate, if held guilty by the court.

Instances of custodial deaths were mounting in our country, as noted by the Supreme Court in its landmark decision in DK Basu, Ashok K Johri versus State Of West Bengal, State Of UP on 18 December, 1996. Hence, section 176 Criminal Procedure Code was amended and a special procedure created for investigating custodial deaths.

For ordinary crimes, investigation is done by the police. But for custodial deaths Section 176 provided that investigation will be presided over by a judicial magistrate. The purpose of making this special provision for custodial deaths was obvious: the police investigation, in this case, might not fair since it will be one of their colleagues.

However, there is nothing in Section 176 which says that policemen accused of custodial death cannot be arrested before the enquiry by the magistrate is completed. In fact, in murder cases, the police usually arrest the accused immediately, and does not wait till the investigation is over.

It is surprising that the accused policemen have only been suspended. They should have been arrested, as was done to the killers of George Floyd in America. The inquiry and trial should thereafter be completed expeditiously, and if the accused are found guilty harsh exemplary punishment must be given, so that policemen across India learn that they cannot continue behaving as the cops did during the British Raj.

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