INDIA: Illegal detention and custodial torture continues unabated in West Bengal 

[NOTICE: The AHRC have developed a new automatic letter-sending system using the “button” below. However, in this appeal, we could not include e-mail addresses of some of the Indian authorities. We encourage you to send your appeal letters via fax or post to those people. Fax numbers and postal addresses of the Indian authorities are attached below with this appeal. Thank you.]

INDIA: Illegal detention; custodial torture; corruption; continuing breach of procedural laws; collapse of rule of law
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Dear Friends,

The Asian Human Rights Commission (AHRC) has received information from MASUM, a human rights organisation in West Bengal regarding the illegal detention and custodial torture of a person by the officers from Raninagar police station in Murshidabad district, West Bengal, India. The victim was arrested from his residence on 18 August 2006, illegally detained in the police station without being produced in the court and tortured for two days allegedly to extract a confession. It is also alleged that the police officers collected bribe from the victim’s father to produce the victim in court.

Mr. Baltu Molla is a resident of Lalkup village, Bamnabad under the jurisdiction of Raninagar police station in Murshidabad district, West Bengal, India. On 18 August 2006, soon after midnight, the officers from Raninagar police station arrested Baltu from his house. The officers did not attribute any reason for the arrest. The officers were led by Mr. Pradip, the Assistant Sub-Inspector of Police of Raninagar police station.

Soon after the arrest Baltu’s father Mr. Sajahan Molla went to the police station to inquire why his son was arrested. At the police station Sajahan contacted Pradip, the Assistant Sub-Inspector of Police. The officer informed him that Baltu was suspected to be involved in several criminal activities and is wanted by the police. Sajahan informed the officer that his son had no criminal history and that he was not informed of any complaints against his son. Sajahan also requested the officer to release his son. The officer denied the request and asked Sajahan to bring Rupees 10,000 [USD 227] and a pistol to be produced at the police station failing which Baltu will not be released from custody.

Sajahan informed the police officer that he do not have that much money and said he do not know how to get a pistol. Sajahan was later chased off from the police station. In the meanwhile the officers tortured Baltu at the police station for two days asking him to confess various crimes, which Baltu denied. Sajahan in the meanwhile managed to borrow Rupees 10,000 and brought it to the police station on 20 August 2006. Though Sajahan could not manage to get a pistol, the police accepted the money and produced Baltu before the Lalbagh Magistrate’s court on the same day. The police also registered a case against Baltu under Sections 373 , 314 and 353 of the Indian Penal Code, 1860 read with Sections 3 and 4 [Punishment for attempt to cause explosion, or for making or keeping explosives with intend to endanger life or property] of the Explosive Substances Act 1908.

It is alleged that Baltu was not in good terms with one Mr. Habibul Seik and Mr. Susil Mondal. Habibul and Susil are allegedly involved in criminal activities in Bamnabad. It is also alleged that Habibul and Susil are in good terms with the Assistant Sub-Inspector and other police officers at the Raninagar police station and they wanted the police officer to book Baltu with some crime and put him in the prison. It is also alleged that there was a feud between Baltu, Habibul and Susil for gaining control in Bamnabad for engaging in illegal activities. Whether Baltu is engaged in any criminal activity or not is yet a question to be decided. However, this does not justify the act of the police for arresting Baltu without a formal charge and torturing him in custody while he was detained for about two days at the police station.

The Criminal Procedure Code of India mandates the police to produce any person arrested within 24 hours at the nearest Magistrate Court. Even though custodial torture is not expressly prohibited by law in India, the evidence collected by illegal means, including torture is not accepted in courts. Custodial torture is considered to be an assault upon a person, though it is not qualified as a specific crime under the current domestic legislations in India. In addition, the police officers have also collected bribe from Baltu’s father.

Forced confession by brutal torture is what criminal investigation in India is all about. Often the entire criminal case depends upon the confession statement of the suspect. The witness statement and recovery are later tailor-made to suit the confession statement. Custodial torture is yet to be made a crime in India. The police officer who engages in custodial violence never gets investigated or punished. There is no independent agency in India which could investigate crimes committed by law enforcing agencies. These lacunas in the existing justice dispensation system are misused by the law enforcement agencies in India, particularly the police.

As it is evident from this case, the police officers arrested Baltu from his residence, tortured him to confess a crime, meanwhile managed to force his father to pay bribe and later produced the person in the court with a set of charges made up against him. While the subsequent development in this case is awaited, the AHRC is aware from its experience that soon the police will also fabricate a few witness statements and may also produce some explosive substances in court alleged to have been recovered from Baltu’s possession. However, since the entire set of evidence is concocted and produced in court without any reasonable investigation, the case against Baltu will end in an acquittal provided Baltu is able to hire a lawyer with a reasonable knowledge of law to defend his case.

The practice of law enforcement being such, the government of India however is concerned about the acquittal rate in criminal cases in India. According to the government of India the reason for acquittal in criminal cases is due to a legal framework where the prosecution is to prove the charges against the accused beyond any reasonable doubt. The government of India as of now is trying to bring in changes to the existing law to increase the rate of conviction in criminal cases. This is because of the apparently wrong notion entertained by the government that the success of a criminal investigation system is proved by the increase in the number of convictions in criminal cases. The AHRC has tried to explain why the government is wrong in adopting this approach through its statement (AS-209-2006) dated 7 September 2006.

In absence of any specific law and continuing breach of procedural laws by the law enforcement officers in India, the Supreme Court of India has issued certain guidelines to be followed without failure by the law enforcement officers during the time of arrest, questioning and detention of suspects. The AHRC has published in its website a complete text of this judgment: SHRI D.K. BASU v State of West Bengal. Even though the violation of the order of the Supreme Court of India could be considered as contempt of court, the Supreme Court is yet to take any action towards this end, in spite of the fact that several cases were brought to the court’s attention.

SUGGESTED ACTION:
Please send a letter to the relevant authorities mentioned below urging for an immediate and thorough investigation into this case in particular and also into the aspects of general policing in India so that disciplinary actions are taken against the police officers if they are found responsible for breach of duty.

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