The custodial death of two men in Tamil Nadu’s Sathankulam town in Thoothukudi district has sparked massive outrage in the state over police brutality. As more details emerge about what happened between June 19 (when the duo was arrested) and June 23 (when Jayaraj died), questions are also being raised on the conduct of the Sathankulam Judicial Magistrate D Saravanan.
It is being alleged that when Sathankulam police approached D Saravanan for remanding Jayaraj and Bennix, the magistrate automatically gave the remand order without physically seeing the accused. The magistrate is supposed to ask a person if he or she has any internal or external injuries in the body. The police had accused the duo of violating lockdown and abusing police officers.
Speaking to TNM, senior advocate V Kannadasan said that other than the police, the magistrate must also be questioned about the procedure he adopted while remanding Jayaraj and Bennix.
“When a person is arrested, previously he would be sent to remand on obtaining an order from the magistrate. The process was mechanical. Now it is not like that,” Kannadasan pointed out.
The old Criminal Rules of Practice was repealed and the new Criminal Rules of Practice, 2019 came into effect from January 1, 2020. This document specifies the procedure that is to be adopted by the courts of law in the state in relation to criminal procedure, examination of victims, witnesses etc and how evidence has to be recorded. Rule 6 in this code speaks elaborately about the duty of the magistrate during remand process.
“No accused shall be placed under remand for the first time, unless he is produced physically. At the time of remand, the Judge/Magistrate shall see if there is any injury on the person of the accused. Any such injury shall be recorded in the remand order and the remand warrant as well. It is permissible to make extensions of remand through the medium of electronic video linkage,” states the code.
According to the new rules, when an accused is produced before the Magistrate for remand, the Magistrate SHALL physically see him. He should then ask the accused if he has any injuries on his body -- both internal and external. (This includes pre-existing health conditions as well). If the accused says he has injuries, then the magistrate shall record the same in the remand order. Similarly when a jail warrant is issued to take the accused to the prison, the details of the injuries as mentioned by the magistrate must be added. This is mandatory.
"In this case, there is a statement in the FIR on June 19 which said that both the accused rolled on the floor while protesting outside their shop on June 19 and have 'oomaikkaayam' (internal injury). The magistrate should have asked what this internal injury is. When the FIR specifically states that there are internal injuries, the magistrate should have asked the accused about it. There is no such mention of the injury in the jail document that I have seen in relation to this case," he explained.
Bennix and Jayaraj were reportedly taken to a hospital in the wee hours of June 20 before they were brought to the magistrate for remand. “A doctor has issued a document about the injuries of the two men. The magistrate should have seen that too before he issued a remand order. But there are no mentions of the injuries in the jail warrant issued by the magistrate,” Kannadasan added.
According to Kannadasan, the only document where the injuries on the accused have been recorded is the jail register, which was signed by the father-son duo and the policemen who escorted them to the Kovilpatti sub-jail. He also said that the accused suffered internal injuries due to an attack on their ribs and abdomen and had external bleeding from the buttocks and all these details are recorded in the jail admission register.
AP Suryaprakasam, an advocate practising at the Madras High Court has written to the Chief Justice of the court to conduct an inquiry into the conduct of Sathankulam Judicial Magistrate and allegations that he had “mechanically passed remand order."
Kannadasan also pointed out the discrepancies in the FIR lodged against the two men by the Sathankulam police which the magistrate obviously seems to have missed.
The contents section of the FIR lodged on June 19 starts thus -- I, Sub-inspector P Raghuganesh of Sathankulam police station, received the complaint at 9.15 pm on June 19, on registered the FIR based on a complaint given by S Murugan, Head Constable, Sathankulam police station.
Further down in the contents, the FIR stated that S Murugan and another policeman Muthuraj were on patrolling duty near Kamarajar Statue in Sathankulam around 9.15 pm. The signature at the bottom of the FIR states that the report was registered at 10 pm.
"How can he be on patrol duty at 9.15 pm and the complaint also be received at 9.15 pm? How can this Murugan be near Kamarajar Statue at 9.15 pm but also be at the station and lodge a complaint at the exact same time? These are basic questions that a magistrate should have raised before issuing a remand order," Kannadasan said.
Another pertinent question being raised by the public is why Jayaraj and Bennix were taken to Kovilpatti sub-jail, around 100 kilometres away from Sathankulam, when there is a district jail at Perurani, closer to the town (around 50 kilometres away).
"Perurani district jail is the closest to Sathankulam and it is at full capacity. Usually such cases will be taken to Palayamkottai central jail. But now due to coronavirus, central jails are not taking in prisoners immediately. The accused are first lodged in some sub-jail for some time like a quarantine and then only they are transferred to central jail. Therefore they might have been taken to Kovilpatti. I don't think there is any foul play in the choice of jail for Jayaraj and Bennix," Kannadasan explained.
However, he added that if the magistrate had actually seen the two men on the day of remand, they would not have been sent to a jail at all. “They could have been sent to a hospital first instead of a prison and they could have been saved. The real culprit seems to be the magistrate who didn't update himself on the law," Kannadasan pointed out.
One of the major demands by the victims’ family was that a new FIR be registered, and the policemen be charged for murder. When asked if that was possible under the law, Kannadasan said that it was neither possible nor necessary to do so.
“When the two men died, the Kovilpatti police would have registered an FIR under section 174 (Suspicious death) of the Criminal Procedure Code (CrPC). That case will be investigated and if there is a prima facie case against the policemen, the sections in that FIR itself will be altered to include murder,” he explained.
“If the death was natural, the FIR registered under 174 will be closed. But if the death was ruled as homicidal, then the police must proceed with altering the FIR accordingly, investigate the case and find out the accused,” he added.
When questioned about the Madurai Bench of Madras High Court ordering the postmortem report to be submitted to it in a sealed cover, Kannadasan said that it could have been ordered to ensure confidentiality. “The family of the victim is entitled to a copy of the postmortem report, but usually nobody gives it to them,” he said.