Dear friends
The Asian Human Rights Commission (AHRC) has received information from Banglar Manabadhikar Suraksha Mancha (MASUM), a human rights organization in West Bengal, that a young man was found dead in police lock-up by the police at Fansideoa Police Station in Darjeeling District in West Bengal on 9 February 2004. He was previously arrested by the police on suspicion of theft without any evidence. The police said the victim committed suicide by hanging himself in a cell. However, the victim’s family insisted that the police tortured the victim to death and disguised his death as a suicide to cover up the case. Until now, the report of magisterial inquest and post-mortem examination is not accessible to the public including the victim’s family. In addition, it is reported that the victim was detained by the police for three days without being produced before a magistrate.
The West Bengal State has a high number of custodial deaths. In fact, deaths occur daily in all government facilities, whether in court lock-ups, police station lock-ups, prisons or other state centres. We call for you to send a letter to the local authorities requesting a thorough and impartial investigation on this matter.
Urgent Appeals Desk
Asian Human Rights Commission (AHRC)
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DETAILED INFORMATION:
Name of the victim: Kamal Sharma, aged about 25 years, a guard of a cement godown, resided at Jangal Basti, Darjeeling District
Alleged perpetrators: Officers attached to the Fansideoa Police Station in Darjeeling District
Period of arrest and detention: From 6 February to 9 February 2004
Date of the custodial death: Around 8:00 pm of 9 February 2004
Case details:
Kamal Sharma was a guard of a cement godown in Jangal Basti at Fansideoa, Darjeeling District, West Bengal. On 6 February 2004, the owner of the cement godown, Mr. Dilip Das, lodged a complaint to Fansideoa Police Station that Rs. 92,000 was stolen from his residence. The police arrested Kamal Sharma as a suspect without any reliable evidence on 6 February 2004 and took him to the police station. No stolen money was found in Kamal Sharma’s possession.
According to Article 22(2) of the Indian Constitution as well as Section 57 of Criminal Procedure Code 1973, the police must produce the arrested person before a magistrate within 24 hours of the arrest. However, the police illegally detained Kamal Sharma for three days and only forwarded him to the Court of Sub Divisional Judicial Magistrate (SDJM) Siliguri on 9 February 2004. The SDJM ordered Kamal Sharma seven days remand at the police station for further investigation as per the prayer (written request) of the police. The police brought the victim back to the Fansideoa Police Station and put him in lock-up. It is reported that there was at least one-co-detainee named Jaydeb Sarkar in a cell at that time.
Around 8:00 pm of the same day, Kamal Sharma was found dead by the police hanging himself in the lock-up. The police took the body of the victim to the nearby Fansideoa Hospital where the doctor declared him dead. According to the statement of Dr. Swapan Sarkar – Block Medical Official of Health (BMOH), who examined the victim’s body, Kamal was already dead when he brought to the hospital. It is reported Kamal Sharma has no serious physical or mental illness history. He was the only breadwinner of the family.
One executive magistrate Surathal conducted an inquiry about the victim’s case under Section 176 of Criminal Procedure Code 1973. After that the body of Kamal was sent to North Bengal Medical College & Hospital for postmortem examination. However, the report of magisterial inquest and postmortem examination is not accessible to the public, including the victim’s family by order of the state government.
As per the police version, there was no sentry on-duty in the lock-up at the relevant time, and when the sentry on-duty came back around 8:00 pm, he found Kamal hanging from one rod of the latrine in the lock-up with a rope made by the rug.
However, the victim’s mother, Ms. Naynakali Devi, and the victim’s sister, Ms. Ganga Devi, said that they believe the victim was tortured to death by the police and the police disguised his death as a suicide. They mentioned that they saw some injury marks on the victim’s body. They further raised the question of how the victim could make a strong rope from the rug within a few minutes, while staying with his co-detainee.
A human rights activist of MASUM also raised the question of the credibility of the inquiry conducted by the Executive Magistrate. He said that it was very difficult to expect a fair and independent inquiry by the Executive Magistrates, as they belong to the home department of the state government just as the police do.
On 14 February 2004, several hundred of the people in Jangal Basti area organized a sit-in-demonstration in front of the office of the Additional Superintendent of Police of Darjeeling, Mr. Rajsekharan, demanding a judicial inquiry into Kamal Sharma’s case, punishment to the perpetrators and an adequate compensation for the victim’s family.
BACKGROUND INFORMATION: Situation of custodial death in West Bengal
According to the Police Regulations of Bengal (1943), for each prisoner in a lock-up there should be 36 square feet of space, and immediate medical treatment when required. Nowhere in the state are these provisions met, and despite recent court orders to address the high number of custodial deaths there, the rules are rarely applied. In fact, deaths occur daily in all government facilities, whether court lock-ups, police station lock-ups, prisons and other state centres.
Furthermore, the suffering of a victim and family does not end with death. The following are just some of the other obstacles which must overcome in any attempt to obtain a modicum of justice:
First, after the person has died, the Criminal Procedure Code (1973) requires the police to notify a magistrate to carry out an inquest. In practice, police often do not contact any magistrate, and instead conduct the inquest themselves, disposing of it in a manner as to avoid any responsibility.
Secondly, in the case of deaths in police custody, Judicial Magistrates should carry out the inquest. In West Bengal, however, Executive Magistrates do this job. The Executive Magistrates are under the Home Department, as are the police. Therefore, where inquests do occur, the alleged perpetrator (the police), prosecutor and judge all belong to the same organization.
Thirdly, for a custodial death case to go to court, the families of the victim have to initiate proceedings. However, in West Bengal, there are no independent judicial officers to handle the filing of cases. Instead, the police themselves are responsible for the keeping of records of Judicial (criminal) cases. Therefore, the family members of a victim go to lodge documents to begin a custodial death inquiry to the police, who are often friends and colleagues of the accused. Not surprisingly, the documents often disappear or they are frequently tampered with by the police, and there is no system in place to ensure that they are recorded as having been lodged.
This situation illustrates that the police control every aspect of the judicial system in West Bengal. From the time of arrest to conviction, imprisonment or death, police run the show.
SUGGESTED ACTION:
Send a letter, fax or email to the addresses below and express your concern about this case.
1. Dr. A.P.J. Abdul Kalam
President
Office of the President,
Rashtrapati Bhawan,
New Delhi, 110004
INDIA
Tel: +91 11 3016767 (Joint Secretary), 3014507 (Personal Secretary)
Fax: +91 11 3017290, 3014570
Email: presssecy@alpha.nic.in or Pressecy@Sansad.nic.in
2. Shri Justice A S Anand
Chairperson
National Human Rights Commission of India
Sardar Patel Bhawan
Sansad Marg, New Delhi – 110 001
INDIA
Tel: +91 11 2334 0891 / 2334 7065
Fax: +91 11 2334 0016
E-Mail: chairnhrc@nic.in
3. Shri Buddhadeb Bhattacharjee
Chief Minister and Minister in Charge of Home (Police) Department
Government of West Bengal
Writers¡¯ Buildings,
Kolkata, West Bengal,
INDIA
PIN Code- 700001
Tel: +91 33 2214 5555 (O) / 2280 0631 (R)
Fax: +91 33 2214 5480
Email: cm@wb.gov.in
4. Shri Justice Mukul Gopal Mukherji
Chairperson
West Bengal Human Rights Commission
Bhabani bhavan, Alipore,
Calcutta-700027
Tel: +91 33 4797259 / 5558866
Fax: +91 33 4799633
5. Mr. Theo C. van Boven
Special Rapporteur on the Question of Torture
OHCHR-UNOG
8-14 Avenue de la Paix
1211 Geneva 10
SWITZERLAND
Fax: +41 22 917-9016
To support this case, please click here: SEND APPEAL LETTER
SAMPLE LETTER
Dear
Re: Custodial death of a young man in West Bengal
Name of the victim: Kamal Sharma, aged about 25 years, a guard of a cement godown, resided at Jangal Basti, Darjeeling District
Alleged perpetrators: Officers attached at Fansideoa Police Station in Darjeeling District
Period of arrest and detention: From 6 February to 9 February 2004
Date of the custodial death: Around 8:00 pm of 9 February 2004
I am writing to bring to your attention the custodial death of Kamal Sharma.
According to the information I have received, Kamal Sharma was found dead hanging himself in the Fansideoa Police Station lock-up in Darjeeling District in West Bengal on 9 February 2004. He was previously arrested by the police on suspicion of theft without any reliable evidence on 6 February 2004. However, the victim’s family insisted that the victim was tortured to death by the police and the police disguised his death as a suicide. They further testified that they saw some injury marks on the victim’s body. Further, the police violated the Indian constitution by illegally detaining the victim for three days even though they must produce the arrested within 24 hours of the arrest.
Therefore, I urge you to conduct thorough and independent investigation of this matter and bring the person(s) responsible for the death in custody of Kamal Sharma. The alleged police perpetrators must be suspended from service while independent inquiries are being conducted. I also urge you to award compensation to the victim’s family. I further urge the West Bengal government to ensure that in every case, a Judicial Magistrate, not an Executive Magistrate who belongs to the home department like the police do, conduct the inquest into a suspicious death, in accordance with existing regulations. Lastly, I request the Government of India to ratify the UN Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (CAT) and implement it into domestic law without delay.
Sincerely yours,
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Thank you.
Urgent Appeals Prorgramme
Asian Human Rights Commission (AHRC)
