Dear friends,
The Asian Human Rights Commission (AHRC) is disturbed to learn that India’s National Human Rights Commission has deemed on 15 September 2011 a case of custodial death to be closed by the payment of compensation to the victim’s family, despite no criminal action taken against the perpetrators. Kalu Mondal was brought to the Liluah police station, Howrah district, West Bengal on 28 December 2008. A few hours later, he was dead, as noted by the T L Jaiswal hospital superintendent upon his arrival. No proper inquiry was carried out into this incident, and none of the responsible officers faced any criminal action.
CASE NARRATIVE:
According to information received from a human rights group in West Bengal, MASUM, Kalu (Krishna) Mondal was brought to the Liluah police station at about 4:30am on 28 December 2008. At about 9:40am he was taken to T L Jaiswal Hospital by police officers. According to the Superintendent of the hospital, Mr. Swapan Kumar Hari, Kalu was dead on arrival, with numerous injuries on his face and legs. It is presumed that he was tortured while in police custody, resulting in his death.
To evade responsibility, the police concocted the story that the victim was assaulted by local people on the suspicion that he was a thief. To manufacture false evidence, a case (Liluah Police Case 271/2008 under sections 342/323/325/304/34 of the Indian Penal Code) was initiated at about 3:05pm on December 28. The police found a Samir Dutta (son of late Birendro Kumar Dutta of 151/21, ‘C’ Road, Bamongachhi, Howrah) to lodge a complaint against unknown persons for assaulting one Biswanath Das (son of late Tarak Das of 4, Kunja Para, Belgachia, Howrah). The First Information Report (FIR) filed by Samir Dutta notes that he brought Biswanath Das to the Liluah police station and later came to know that he died in the hospital.
While Kalu was at the police station for five hours, no Memo of Arrest was prepared, and nor was his family informed, even though his residence was only a short distance away. It is the duty of the police under Police Regulation of Bengal, 1943 that before admission to police lock up, the Officer-in-Charge of the police station will examine the body of the detainee for any sign of injury and record a full description of any marks of injury found on him. As the police did not follow this procedure, it is concluded that the victim was fine at the time of arrest. It is clear that the victim died in police custody without any criminal charge against him and it is logical to conclude that he was a victim of police torture.
December 28 being a Sunday, one lady Judicial Magistrate attached with the Sessions Judge’s Court, Howrah was asked to conduct an inquiry into the case, but it was not conducted as stipulated in the Criminal Procedure Code, 1973. The inquest was also done under dubious circumstances, and the post mortem examination in Howrah morgue was also not done properly.
According to senior police officers, some police personnel were suspended, but the Inspector-in-Charge of the Liluah police station, Mr. Asit Shaw has been exonerated, even though he is responsible for all actions in the police station.
Over the past three years, the NHRC did not call for any criminal action to be taken against the police officers responsible for the death of a person in their custody, or for any inquiry into police behaviour, the falsification of evidence and the lack of due process. Instead, on 15 September 2011, the NHRC merely noted that since the sum of Rs 100,000 had been paid to the victim’s family, and that departmental action was being taken against two officers (but not the Inspector in Charge), the case was now deemed closed.
The NHRC should consider carefully its role in upholding and promoting human rights and the rule of law, and desist from shielding human rights violators in uniform. The Protection of Human Rights Act, 1993 prescribes the procedure to be followed by the National and State Human Rights Commissions in India, while they enquire into a complaint of human rights violation. Section 18 of the Act prescribes the procedure to be followed ‘during and after the inquiry’, which reads:
(a) where the inquiry discloses the commission of violation of human rights or negligence in the prevention of violation of human rights or abetment thereof by a public servant, it may recommend to the concerned Government or authority –
(i) to make payment of compensation or damages to the complainant or to the victim or the members of his family as the Commission may consider necessary;
(ii) to initiate proceedings for prosecution or such other suitable action as the Commission may deem fit against the concerned person or persons;
(iii) to take such further action as it may think fit;
(b) approach the Supreme Court or the High Court concerned for such directions, orders or writs as the Court may deem necessary;
(c) recommend to the concerned Government or authority at any stage of the inquiry for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary;
(d) subject to the provisions of clause (e), provide a copy of the inquiry report to the petitioner or his representative;
(e) the Commission shall send a copy of its inquiry report together with its recommendations to the concerned Government or authority and the concerned Government or authority shall, within a period of one month, or such further time as the Commission may allow, forwards its comments on the report, including the action taken or proposed to be taken thereon, to the Commission;
(f) the Commission shall publish its inquiry report together with the comments of the concerned Government or authority, if any, and the action taken or proposed to be taken by the concerned Government or authority on the recommendations of the Commission.
The recommendation of the Commission in this case to pay compensation complies with the above provision of law. However, a mere recommendation to pay interim compensation would not suffice to meet the ends of justice in the case. This case, as it is in many other complaints before the Commission, divulges a serious crime, of torture and custodial death, committed by the West Bengal State Police. It is after the Commission having come to know about numerous instances of torture and deaths in custody, that it issued a letter dated 14 December 1993 addressed to all Chief Secretaries on their obligation to report custodial deaths within 24 hours. The letter, with reference number 66/SG/NHRC/1993 affirms: “[t]he National Human Rights Commission at its meeting held on the 6th instant discussed the problems of custodial deaths and custodial rapes. In view of the rising number of incidents and reported attempts to suppress or present a different picture of these incidents with the lapse of time, the Commission has taken a view that a direction should be issued forthwith to the District Magistrates and Superintendents of Police of every district that they should report to the Secretary General of the Commission about such incidents within 24 hours of occurrence or of these officers having come to know about such incidents. Failure to report promptly would give rise to presumption that there was an attempt to suppress the incident.”
Subsequently on 21 June 1995, the Commission expanded the operation of the directives to include deaths in judicial custody as well. On 10 August 1995, the Commission further directed the state governments that all autopsy proceedings concerning a person who died in custody to be video graphed. In this directive, the Commission has referred to its knowledge that the doctors who often undertake the autopsy are under unwarranted pressure from the police, wherein “a systematic attempt is being made to suppress truth, and the [post-mortem] report is often the version of the police.” Realising that there are no standardised or comprehensive procedures for conducting autopsies, the Commission suggested the usage of the UN Model Autopsy Protocol to be used by the doctors.
The facts in this case however suggest that the police and state government have negated all these directives. Despite this the Commission decided to be satisfied by recommending an interim compensation to be paid to the victim’s family and closed the case.
When the allegations and the facts produced before the Commission divulges adequate details regarding the commission of a human rights violation by the state agencies, the Commission on several occasions has initiated criminal proceedings against the accused state agent. For instance in Uttar Pradesh Case No. 12982/ 96-97 and Kerala Case No.64/11/1999-2000 the Commission directed the state government to initiate a criminal case against the accused police officers. In Jharkhand Case No. 974/34/2001-2002, the Commission not only directed the state government to initiate a criminal action against the accused police officer, further monitored the proceedings. It is despite this precedence that the Commission in the present case failed to initiate any further action upon the complaint and closed it.
Mere payment of compensations, which could be translated as a form of punishment, will not meet the ends of justice in a case of torture or custodial death. If this becomes the precedent, the role of the Commission, contrary to what has been envisioned in the Paris Principles, can be reduced to that of an arbitrating institution, which without any interest in preventing human rights violations, merely adjudicate claims and award pecuniary compensations. In countries like India where the rule of law has suffered considerable setbacks at the hands of the state police, the Commission has an active role to play, in respecting, promoting and fulfilling human rights guarantees and through it fulfilling the role of the Commission itself.
The facts in the present case, at least as borne out through the final order of the Commission, do not disclose any actions initiated against the accused police officers. It is only through a criminal complaint and the investigation initiated through it, the perpetrators of the crime in this case could be identified. As it is in several other cases reported to the Commission, the victims in this case are poor and illiterate, unable to pursue their cause and case into an independent investigation and successful prosecution. All that they could afford is to bring their case to the notice of the Commission, with an expectation that the Commission would initiate actions so that the perpetrators in the case would be prosecuted. However, the Commission has closed the case as if, the payment of Rs. 100,000 would suffice the punishment for the crime.
As of now, the case is yet to be investigated, the perpetrators identified and prosecuted. It appears that the NHRC would not be initiating any action in the case, hence this appeal.
SUGGESTED ACTION:
Please write to the authorities below and demand that a full inquiry is conducted into this matter, and the responsible persons are held accountable.
Please be informed that the AHRC has written a separate letter to the UN Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions calling for his intervention into this matter.
To support this case, please click here: SEND APPEAL LETTER
SAMPLE LETTER
Dear ___________,
INDIA: NHRC closes case of custodial death with compensation but no criminal inquiry
Name of victim: Kalu Mondal alias Krishna (deceased) of Kunjapara, Belgachia, Police Station-
Lilauh, District-Howrah, West Bengal, India
Names of alleged perpetrators:
1. Mr. Asit Show, Inspector-in-Charge of Liluah Police Station
2. Mr. Ranjit Sarkar, Additional Superintendent of Police, Howrah and other police personnel of
Liluah Police Station, Howrah
Date of incident: 28 December 2008
Place of incident: At Liluah Police Station, Howrah, West Bengal
I am writing to voice my deep concern regarding the National Human Rights Commission’s decision of 15 September 2011, to deem a case of custodial death closed by the payment of compensation to the victim’s family, even though no criminal action has been taken against the perpetrators.
Kalu (Krishna) Mondal was brought to the Liluah police station at about 4:30am on 28 December 2008. At about 9:40am he was taken to T L Jaiswal Hospital by police officers. According to the Superintendent of the hospital, Mr. Swapan Kumar Hari, Kalu was dead on arrival, with numerous injuries on his face and legs. It is presumed that he was tortured while in police custody, resulting in his death.
I have learnt that the police concocted a story that the victim was assaulted by local people on the suspicion that he was a thief, to evade responsibility for Kalu’s death. To manufacture false evidence, a case (Liluah Police Case 271/2008 under sections 342/323/325/304/34 of Indian Penal Code) was initiated at about 3:05pm on December 28. The police found a Samir Dutta (son of late Birendro Kumar Dutta of 151/21, ‘C’ Road, Bamongachhi, Howrah) to lodge a complaint against unknown persons for assaulting one Biswanath Das (son of late Tarak Das of 4, Kunja Para, Belgachia, Howrah). The First Information Report (FIR) filed by Samir Dutta notes that he brought Biswanath Das to the Liluah police station and later came to know that he died in the hospital.
While Kalu was at the police station for five hours, no Memo of Arrest was prepared, and nor was his family informed, even though his residence was only a short distance away. It is the duty of the police under Police Regulation of Bengal, 1943 to examine the body of the detainee for any sign of injury and record a full description of any marks of injury found, before his admission to police lock up. As the police did not follow this procedure, it is concluded that the victim was fine at the time of arrest. It is clear that the victim died in police custody without any criminal charge against him and it is logical to conclude that he was a victim of police torture.
December 28 being a Sunday, one lady Judicial Magistrate attached with the District Judges Court, Howrah was asked to conduct an inquiry into the case, but it was not conducted as stipulated in the Criminal Procedure Code, 1973. The inquest was also done under dubious circumstances, and the post mortem examination in Howrah morgue was also not done properly.
According to senior police officers, some police personnel were suspended, but the Inspector-in Charge of the Liluah police station, Mr. Asit Shaw has been exonerated, even though he is responsible for all actions in the police station.
Over the past three years, the NHRC did not call for any criminal action to be taken against the police officers responsible for the death of a person in their custody, or for any inquiry into police behaviour, the falsification of evidence and the lack of due process. Instead, on 15 September 2011, the NHRC merely noted that since the sum of Rs 100,000 had been paid to the victim’s family, and that departmental action was being taken against two officers (but not the Inspector in Charge), the case was now deemed closed.
Over the past three years, the NHRC did not call for any criminal action to be taken against the police officers responsible for the death of a person in their custody, or for any inquiry into police behaviour, the falsification of evidence and the lack of due process. Instead, on 15 September 2011, the NHRC merely noted that since the sum of Rs 100,000 had been paid to the victim’s family, and that departmental action was being taken against two officers (but not the Inspector in Charge), the case was now deemed closed.
The NHRC should consider carefully its role in upholding and promoting human rights and the rule of law, and desist from shielding human rights violators in uniform. The Protection of Human Rights Act, 1993 prescribes the procedure to be followed by the National and State Human Rights Commissions in India, while they enquire into a complaint of human rights violation. Section 18 of the Act prescribes the procedure to be followed ‘during and after the inquiry’, which reads:
(a) where the inquiry discloses the commission of violation of human rights or negligence in the prevention of violation of human rights or abetment thereof by a public servant, it may recommend to the concerned Government or authority –
(i) to make payment of compensation or damages to the complainant or to the victim or the members of his family as the Commission may consider necessary;
(ii) to initiate proceedings for prosecution or such other suitable action as the Commission may deem fit against the concerned person or persons;
(iii) to take such further action as it may think fit;
(b) approach the Supreme Court or the High Court concerned for such directions, orders or writs as the Court may deem necessary;
(c) recommend to the concerned Government or authority at any stage of the inquiry for the grant of such immediate interim relief to the victim or the members of his family as the Commission may consider necessary;
(d) subject to the provisions of clause (e), provide a copy of the inquiry report to the petitioner or his representative;
(e) the Commission shall send a copy of its inquiry report together with its recommendations to the concerned Government or authority and the concerned Government or authority shall, within a period of one month, or such further time as the Commission may allow, forwards its comments on the report, including the action taken or proposed to be taken thereon, to the Commission;
(f) the Commission shall publish its inquiry report together with the comments of the concerned Government or authority, if any, and the action taken or proposed to be taken by the concerned Government or authority on the recommendations of the Commission.
The recommendation of the Commission in this case to pay compensation complies with the above provision of law. However, a mere recommendation to pay interim compensation would not suffice to meet the ends of justice in the case. This case, as it is in many other complaints before the Commission, divulges a serious crime, of torture and custodial death, committed by the West Bengal State Police. It is after the Commission having come to know about numerous instances of torture and deaths in custody, that it issued a letter dated 14 December 1993 addressed to all Chief Secretaries on their obligation to report custodial deaths within 24 hours. The letter, with reference number 66/SG/NHRC/1993 affirms: “[t]he National Human Rights Commission at its meeting held on the 6th instant discussed the problems of custodial deaths and custodial rapes. In view of the rising number of incidents and reported attempts to suppress or present a different picture of these incidents with the lapse of time, the Commission has taken a view that a direction should be issued forthwith to the District Magistrates and Superintendents of Police of every district that they should report to the Secretary General of the Commission about such incidents within 24 hours of occurrence or of these officers having come to know about such incidents. Failure to report promptly would give rise to presumption that there was an attempt to suppress the incident.”
Subsequently on 21 June 1995, the Commission expanded the operation of the directives to include deaths in judicial custody as well. On 10 August 1995, the Commission further directed the state governments that all autopsy proceedings concerning a person who died in custody to be video graphed. In this directive, the Commission has referred to its knowledge that the doctors who often undertake the autopsy are under unwarranted pressure from the police, wherein “a systematic attempt is being made to suppress truth, and the [post-mortem] report is often the version of the police.” Realising that there are no standardised or comprehensive procedures for conducting autopsies, the Commission suggested the usage of the UN Model Autopsy Protocol to be used by the doctors.
I am informed that the facts in this case however suggest that the police and state government have negated all these directives. Despite this the Commission decided to be satisfied by recommending an interim compensation to be paid to the victim’s family and closed the case.
When the allegations and the facts produced before the Commission divulges adequate details regarding the commission of a human rights violation by the state agencies, the Commission on several occasions has initiated criminal proceedings against the accused state agent. For instance in Uttar Pradesh Case No. 12982/ 96-97 and Kerala Case No.64/11/1999-2000 the Commission directed the state government to initiate a criminal case against the accused police officers. In Jharkhand Case No. 974/34/2001-2002, the Commission not only directed the state government to initiate a criminal action against the accused police officer, further monitored the proceedings. It is despite this precedence that the Commission in the present case failed to initiate any further action upon the complaint and closed it.
I am also aware that in addition to all the above directives of the Commission, the Supreme Court of India in the D. K. Basu case has ordered the state governments to follow the procedures prescribed by the Court at the time of arrest and detention of a person. This among others, include informing the detainee or the person suggested by the detainee, about the reason for arrest, the place the person would be detained and when the detainee would be produced before a judicial officer. In the present case the police failed to follow any of these directives.
I am of the opinion that mere payment of compensations, which could be translated as a form of punishment, will not meet the ends of justice in a case of torture or custodial death. If this becomes the precedent, the role of the Commission, contrary to what has been envisioned in the Paris Principles, can be reduced to that of an arbitrating institution, which without any interest in preventing human rights violations, merely adjudicate claims and award pecuniary compensations. In countries like India where the rule of law has suffered considerable setbacks at the hands of the state police, the Commission has an active role to play, in respecting, promoting and fulfilling human rights guarantees and through it fulfilling the role of the Commission itself.
The facts in the present case, at least as borne out through the final order of the Commission, do not disclose any actions initiated against the accused police officers. It is only through a criminal complaint and the investigation initiated through it; the perpetrators of the crime in this case could be identified. As it is in several other cases reported to the Commission, the victims in this case are poor and illiterate, unable to pursue their cause and case into an independent investigation and successful prosecution. All that they could afford is to bring their case to the notice of the Commission, with an expectation that the Commission would initiate actions so that the perpetrators in the case would be prosecuted. However, the Commission has closed the case as if, the payment of Rs. 100,000 would suffice the punishment for the crime.
As of now, the case is yet to be investigated, the perpetrators identified and prosecuted. It appears that the NHRC would not be initiating any action in the case, hence this appeal.
I therefore urge you:
1. that the case of custodial death of Kalu Mondal is investigated without any further delay;
2. that the investigation is undertaken by an independent agency like the Central Bureau of Investigation and not the West Bengal state police;
3. that the witnesses in the case are questioned and their statements recorded without any further delay;
4. that the officers suspected in the case of having committed the crime are suspended from active service immediately pending the investigation in the case;
5. that if there has been any investigation undertaken by the west Bengal state police concerning the case, that report be made available to the victim’s family as well as a copy of the same filed with the National Human Rights Commission of India.
Yours sincerely,
—————-
PLEASE SEND YOUR LETTERS TO:
1. Ms Mamata Banerjee
Chief Minister
Government of West Bengal
Writers’ Building, Kolkata, West Bengal
INDIA
Fax: + 91 33 22144328
Email: cm_wb@nic.in
2. Chief Secretary
Government of West Bengal
Writers’ Building, Kolkata, West Bengal
INDIA
Fax: + 91 33 22144328
Email: chiefsec@wb.gov.in
3. Additional Chief Secretary (Home)
Government of West Bengal
Writers’ Building, Kolkata, West Bengal
INDIA
Email: sechome@wb.gov.in
4. Director General & Inspector General of Police
Government of West Bengal
West Bengal Police Directorate
Writers’ Building, Kolkata, West Bengal
INDIA
Fax: + 91 33 22145486
Email: dgp_westbengal@gmail.com
7. Chairperson
National Human Rights Commission
Faridkot House, Copernicus Marg
New Delhi 110001
INDIA
Fax: + 91 11 2338 4863
E-mail: chairnhrc@nic.in
Thank you.
Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)
