UPDATE (India): Torture victim and his family members re-arrested and impartiality of the investigation is at stake

[NOTICE: To facilitate your intervention of the urgent appeals issued by the AHRC, we have developed a new automatic letter-sending system using the “button” below. However, in this appeal, we could not include e-mail addresses of all 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 authorities are attached below with this appeal. Thank you.]

Dear friends,

The Asian Human Rights Commission (AHRC) has received updated information regarding Mr. Ajay Kumar Yadav (30), who was allegedly brutally tortured by the Bally police in Howrah district, West Bengal, India, during his police remand from 12 to 16 February 2007 (See further: UA-065-2007). We were informed by the MASUM, our local partner in West Bengal, that Mr. Ajay and all his other family members were re-arrested by the Bally police on 8 March 2007 on the charges of murdering Mr. Ajay’s wife Mrs. Namita Yadav, after a skeleton was reportedly detected in a nearby well of Mr. Ajay’s residence. The AHRC is deeply concerned that the arrest of Mr. Ajay and his family members were made-up by the Bally police, without any concrete and forensic evidence proving that the skeleton is that Mrs. Namita. It is also suspicious that police took such an action in haste after Mr. Ajay filed a complaint against police officers alleging custodial torture before the Chief Judicial Magistrate of Howrah district on 23 February 2007. We are particularly concerned that Mr. Ajay may be subjected to further torture by the Bally police during his custody. We call for your urgent intervention into this mater to call for a fair and proper investigation into this case.

UPDATED INFORMATION:

Mr. Ajay Yadav filed a complaint case against the police officers of the Bally Police Station before the Chief Judicial Magistrate of Howrah district vide 168C/ 2007 on 23 February 2007 alleging that he was tortured in custody while he was held at Bally police station between 12 to 16 February 2007. The accused police officers are: Mr. Asit Shaw, the Inspector-in-Charge of the Bally Police Station and Mr. Sourabh Kumar Banerjee, the Investigating Officer at Bally Police Station. Meanwhile, the MASUM, on behalf of Mr. Ajay, lodged several complaints regarding Ajay’s torture case to various local authorities, including the Superintendent of Police (SP) of Howrah and Director General of Police (DGP) of West Bengal.

On 8 March 2007, a skeleton was reportedly detected in a nearby well of Mr. Ajay. Interestingly, without any forensic evidence the Bally police allegedly identified the skeleton as that of Mrs. Namita, the wife of Mr. Ajay who has disappeared since 13 December 2006. The Bally police immediately started a police case against Mr. Ajay and his other family members on the charges of murdering Mrs. Namita (Refer to: Case No. 62/2007 under section 302/201/34/120(B) of the Indian Penal Code at the Bally police station). Subsequently, Mr. Ajay, his parents and his maternal uncle were arrested by the Bally police on the same day on March 8. The Bally police then filed an application of 14-day police custody of Mr. Ajay and his father before Chief Judicial Magistrate Court (CJM) of Howrah on March 9. The police remand was granted and currently Mr. Ajay and his father are in Bally police custody, while Mr. Ajay’s mother and his uncle are in judicial custody.

It is a coincidence that Additional Superintendent of Police (ASP) of Howrah district summoned Mr. Kirity Roy, the President of MASUM, to inquire about the torture of Mr. Ajay, a few hours before the skeleton was found. Due to his absence, a staff of MASUM met the ASP. The ASP argued with the MASUM staff that Ajay was not tortured by the Bally police. It is interesting to note here that it is the very same officer who was supposed to investigate the torture case of Ajay and that he had already come to a conclusion in that case even before that case was yet to be investigated.

The AHRC believes that the investigation against Mr. Ajay and his family members should be conducted by an other police agency such as the Crime Investigation Department (CID) of West Bengal (state level), but not by the Bally police to ensure an independent and fair investigation. We are concerned that the investigation by the Bally police into this case may not be held in a fair manner, as Ajay has already initiated a criminal case against some of the police officers responsible for his torture at Bally police station. Ajay’s re-arrest and that of his family members are suspicious, since the arrest was made even before any forensic examination of the skeleton recovered.

The AHRC is also concerned whether Ajay may be subjected to further torture and intimidation by the Bally police to extract a confession statement or pressure him to withdraw his complaint against the police officers. We also call for immediate release of Ajay and his family members if the police fail to present any concrete evidence to prove his involvement into the disappearance of Mrs. Namita.

ADDITIONAL INFORMATION:

It is common in India that persons are arrested even before the police have any credible information regarding the involvement of the person in an alleged crime. This is because criminal investigation in India often starts with a confession statement, which is often forced out of an accused in custody using brutal torture. Once such a statement is made or prepared by the police and the accused forced to sign it by torture, the police make-up the rest of the case by obtaining fabricated statements from witnesses they create or gather with the help of interested persons in the case. The AHRC suspects that similar tactics will be employed in this case too. In this case however, there is a strong possibility that the police will resort to such a tactic since the accused in this case, Ajay, has already filed complaints against the police alleging custodial torture. The police is suspected to be making use of the custody of Ajay to get the charges against them to be dropped by trapping Ajay into custody.

There is currently no effective law in India to prevent and punish custodial torture. There is no independent mechanism to investigate such cases also. The only remedy in cases of custodial torture is that for the victim to approach the court, as Ajay did in this case, and the case will be referred to the same police who is responsible for torture or to their immediate superior officers who fails to register cases against their colleagues. This is reflected from the attitude of the ASP who argued with the staff of MASUM to convince him that Ajay was not tortured by Bally police while he was held in custody in that police station.

The AHRC and many domestic originations have been vociferously campaigning for India to ratify the International Convention against Torture and to have an effective domestic legislation to contain custodial torture in India. However, thus far the government of India has failed to ratify the convention and all that remain is a statement made by the Prime Minister of India a few months ago that India is preparing to ratify the convention.

SUGGESTED ACTION:

Please write to the relevant local authorities listed below and demand a fair and impartial investigation by independent police agents into the concerned case. Please also urge them to ensure the immediate release of Mr. Ajay and his family members according to law, if there is no concrete evidence against them. Please also urge them to take immediate action against the Bally police officers, who were allegedly responsible for the torture of Mr. Ajay.

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