The brutality committed on P Jayaraj and Fenix is unacceptable. It is high time that policemen in India also fear the law if they violate it

What happened recently in Tuticorin, Tamil Nadu, is worse than the Nirbhaya case for which four persons involved were hanged a few months ago. A father and son, P Jayaraj and Fenix, running a mobile accessory shop in Sathankulam town in Tuticorin district were arrested by some policemen allegedly for keeping their shop open for some time beyond the period permitted during the lockdown. The two of them were booked under Section 188 (disobedience to order duly promulgated by public servant), 353 (use of force to deter public servant from duty) 269 (negligent act likely to spread infection of disease dangerous to life) and 506(2) (Punishment for criminal intimidation) of the Indian Penal Code.

They were then taken to the police station and brutally assaulted, evidently by forcibly thrusting rods or sticks into their private parts (since when they were released from custody their clothes were torn and covered in blood and they were profusely bleeding from their private parts. In fact, they needed multiple changes of clothes in the hours after they were released by the policemen).They later died within a day of each other. In the Nirbhaya case, too, a rod was thrust into the private parts of the victim, but it was done by delinquent citizens who were non-officials. In the case of P Jayaraj and Fenix, the brutality was committed by policemen whose duty it is to uphold the law and protect citizens. Thus rakshaks (protectors) turned into bhakshaks(destroyers).

There is a big uproar all over the country, particularly in Tamil Nadu, over this ghastly incident. There has been an outpouring of outrage and shock by the Hindi and southern film industry and DMK leaders have blamed the administration squarely for the occurrence.

In Prakash Kadam vs Ramprasad Vishwanath Gupta, 2011 case,  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 people 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 Nirbhaya accused were hanged, all the more should the policemen in the Tuticorin case be, if held guilty by the court. It may be mentioned that instances of custodial deaths were mounting in our country, as noted by the Supreme Court in its landmark decision in DK Basu vs State of West Bengal, 1996. Hence Section 176 of the 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 be done by a judicial magistrate. The purpose of making this special provision for custodial deaths was obvious: The police may not make a fair investigation against a colleague (as there is often a tendency of people in the same service to side with each other).

However, there is nothing in Section 176 which says that policemen accused of custodial death cannot be arrested before the enquiry by the judicial magistrate is completed. In fact, in cases of murder, the police usually arrest the accused immediately and do not wait to do so till the investigation is over. Hence, the policemen involved in brutalising P Jayaraj and Fenix must be arrested.

In the FIR lodged by the policemen, it was alleged that the deceased father and son had abused the policemen and threatened to kill them. This sounds like an implausible claim, as it is difficult to believe shopkeepers would behave like this with policemen. In any event, assuming this was true, it was no justification for the atrocious and abhorrent acts committed by the policemen on the deceased. In the police FIR it is also alleged that the two deceased suffered injuries because they rolled on the ground. This version is laughable. Why should they roll on the ground? And how can rolling on the ground result in such horrendous injuries as sustained by the deceased?

In the State of UP vs Mohd Naim, Justice AN Mulla of the Allahabad High Court observed: “There is not a single lawless group in the whole of the country whose record of crime comes anywhere near the record of that single organised unit which is known as the Indian police force.” No doubt the above observation was expunged by the Supreme Court, calling it a “sweeping generalisation”, but it does indicate that many policemen in India think that they are above the law. They seem to believe that the law cannot touch them. This needs to change, else the police brutalities in the country will never end and will, in fact, continue to grow each day as we have recently witnessed during the lockdown. The cases of harassment of the citizens by the policemen for minor lockdown infractions and the harsh punishment and humiliation heaped upon the migrant labourers who were trekking across the country in order to reach home are some of the cases that come to mind. The brutality committed on P Jayaraj and Fenix is unacceptable. It is high time that the fear of the law was put in the hearts of policemen.

(Writer: Markandey Katju; Courtesy: The Pioneer)

The brutality committed on P Jayaraj and Fenix is unacceptable. It is high time that policemen in India also fear the law if they violate it

What happened recently in Tuticorin, Tamil Nadu, is worse than the Nirbhaya case for which four persons involved were hanged a few months ago. A father and son, P Jayaraj and Fenix, running a mobile accessory shop in Sathankulam town in Tuticorin district were arrested by some policemen allegedly for keeping their shop open for some time beyond the period permitted during the lockdown. The two of them were booked under Section 188 (disobedience to order duly promulgated by public servant), 353 (use of force to deter public servant from duty) 269 (negligent act likely to spread infection of disease dangerous to life) and 506(2) (Punishment for criminal intimidation) of the Indian Penal Code.

They were then taken to the police station and brutally assaulted, evidently by forcibly thrusting rods or sticks into their private parts (since when they were released from custody their clothes were torn and covered in blood and they were profusely bleeding from their private parts. In fact, they needed multiple changes of clothes in the hours after they were released by the policemen).They later died within a day of each other. In the Nirbhaya case, too, a rod was thrust into the private parts of the victim, but it was done by delinquent citizens who were non-officials. In the case of P Jayaraj and Fenix, the brutality was committed by policemen whose duty it is to uphold the law and protect citizens. Thus rakshaks (protectors) turned into bhakshaks(destroyers).

There is a big uproar all over the country, particularly in Tamil Nadu, over this ghastly incident. There has been an outpouring of outrage and shock by the Hindi and southern film industry and DMK leaders have blamed the administration squarely for the occurrence.

In Prakash Kadam vs Ramprasad Vishwanath Gupta, 2011 case,  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 people 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 Nirbhaya accused were hanged, all the more should the policemen in the Tuticorin case be, if held guilty by the court. It may be mentioned that instances of custodial deaths were mounting in our country, as noted by the Supreme Court in its landmark decision in DK Basu vs State of West Bengal, 1996. Hence Section 176 of the 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 be done by a judicial magistrate. The purpose of making this special provision for custodial deaths was obvious: The police may not make a fair investigation against a colleague (as there is often a tendency of people in the same service to side with each other).

However, there is nothing in Section 176 which says that policemen accused of custodial death cannot be arrested before the enquiry by the judicial magistrate is completed. In fact, in cases of murder, the police usually arrest the accused immediately and do not wait to do so till the investigation is over. Hence, the policemen involved in brutalising P Jayaraj and Fenix must be arrested.

In the FIR lodged by the policemen, it was alleged that the deceased father and son had abused the policemen and threatened to kill them. This sounds like an implausible claim, as it is difficult to believe shopkeepers would behave like this with policemen. In any event, assuming this was true, it was no justification for the atrocious and abhorrent acts committed by the policemen on the deceased. In the police FIR it is also alleged that the two deceased suffered injuries because they rolled on the ground. This version is laughable. Why should they roll on the ground? And how can rolling on the ground result in such horrendous injuries as sustained by the deceased?

In the State of UP vs Mohd Naim, Justice AN Mulla of the Allahabad High Court observed: “There is not a single lawless group in the whole of the country whose record of crime comes anywhere near the record of that single organised unit which is known as the Indian police force.” No doubt the above observation was expunged by the Supreme Court, calling it a “sweeping generalisation”, but it does indicate that many policemen in India think that they are above the law. They seem to believe that the law cannot touch them. This needs to change, else the police brutalities in the country will never end and will, in fact, continue to grow each day as we have recently witnessed during the lockdown. The cases of harassment of the citizens by the policemen for minor lockdown infractions and the harsh punishment and humiliation heaped upon the migrant labourers who were trekking across the country in order to reach home are some of the cases that come to mind. The brutality committed on P Jayaraj and Fenix is unacceptable. It is high time that the fear of the law was put in the hearts of policemen.

(Writer: Markandey Katju; Courtesy: The Pioneer)