“Who will guard the guards?”, a quote by Roman poet Juvenal which roughly means, “Who will control those in positions of power?” could have never been more relevant.
The revelations about a father and son dying in police custody due to sexual torture (inflicted using lathis) has brought to light the ways a few law enforcement officials misuse or at times, disregard the laws they are expected to uphold.
With netizens demanding justice for the two deceased across different platforms, a lot of questions have come to light regarding the legal options that should have been available for the duo following their arrest, and how many of them were made accessible for them.
At this point, it is crucial for citizens to be aware of the rights and laws they can evoke to ensure a fair trial before and after the arrest (To what extent a person getting arrested might actually be able to put these rights to use is a different story altogether).
Here are a few pointers about a person’s arrest to keep in mind:
1. Possession of a warrant: Police officers are supposed to have a warrant while arresting someone for minor offenses like assault or cheating.
The police can arrest a person without a warrant under Section 41 of the Code of Criminal Procedure (CrPC) if:
- The accused has been involved in any cognizable offense (like rape, murder, kidnapping, and even some instances of theft), or against whom a ‘reasonable complaint’ has been made, or credible information has been received about the person, or a ‘reasonable suspicion’ is prevalent.
- The person has been declared an offender either under the CrPC or in a state government order.
- The accused had obstructed a police officer from carrying out his duty, or escaped/attempted to escape from lawful custody.
- The person happens to be a released convict and breaches any law under sub-Section (5) of Section 356.
What happened in the case of Jayaraj and Emmanuel Bennicks?
In the case of custodial death of P Jayaraj and Emmanuel Bennicks in Tamil Nadu’s Tuticorin on June 22, the father-son duo were arrested by the police without a warrant.
Considering the fact that they had been arrested following an altercation with the law enforcement officials for allegedly keeping their shops open after the permitted hours during the lockdown, one could conclude that this was not a cognizable offense, and that the arrest should have been carried out with a warrant.
2. Right to know the reason behind the arrest: Section 50 of the CrPC guarantees the right to know the grounds on which a person is being arrested, if the police do so without a warrant.
Relation with Jayaraj and Bennicks case
The father-son duo were arrested by the police following the shopkeepers’ argument with the officers about keeping their shops open after the permitted hours during the lockdown.
This could be interpreted as the two of them knowing the reason behind their arrest. However, it is not clear whether the police explicitly highlighted any breach of law as the reason.
3. Right to know whether the offense is bailable: Section 50(2) of the CrPC states that the police should inform the person arrested about whether their offense is bailable or non-bailable, when the arrest is being carried out without a warrant. The officers are also supposed to arrange for sureties on his/her behalf.
How things worked for the father-son duo
First, let us answer the question on whether the charges against the two of them were bailable or non-bailable offenses.
According to the FIR filed by the police, the duo had been arrested under Sections 188, 269, 294(b), 353, and 506 (2) of the Indian Penal Code (IPC).
Of these, Sections 188, 269, and 294(b) are bailable offenses, while Section 353 and 506(b) of the IPC are non-bailable offenses.
Going by the statements of eye-witnesses, the police had told the duo that they would come out on bail soon and these were not serious offenses.
4. No unnecessary restraint on arrestee: Section 49 of the CrPC states an arrestee should not be restrained unnecessarily unless he/she tries to escape, and only ‘reasonable force’ must be used.
Similarly, when a person is being arrested, Section 46 of the CrPC gives police officers the right to use only the ‘necessary’ physical force, and this should not result in the death of a person.
In Jayaraj and Bennicks case…
According to the statements of Bennicks’ friends, the father and son had been beaten up brutally and sexually tortured (using lathis) at the police station, but neither of them had tried to escape from the police’s clutches.
To make matters worse, the police’s methods had actually resulted in the deaths of the two people, resulting in another violation of the CrPC.
5. Medical examination of arrestee: Section 53 states that a medical officer serving the central or state government should compulsorily perform a thorough medical examination of the arrestee.
What happened in the custodial death case?
Rajkumar, one of Bennicks’ friends, alleged that Sathankulam inspector Srithar had asked the doctors at the government hospital in the town to provide a certificate stating that the duo was fit, when they were actually not.
A medical certificate claiming they were fit had been issued, when two of them had recorded high blood pressure. Bennicks’ friends also said the two of them had been bleeding severely from their rectums.
Ideally, an uninfluenced medical examination should have resulted in the duo staying at the hospital for further treatment and not being sent to the Kovilpatti sub-jail the next day.
It can be said that the purpose of the medical examination was defeated when the police sought a fake medical fitness certificate.
6. No detaining a person for more than 24 hours: Article 22 of the Constitution requires a person to be produced before a Judicial Magistrate within 24 hours of arrest. The arrestee can be detained further only after an order from the Magistrate.
A take in Jayaraj and Bennicks case
The duo were detained for approximately 11 hours at the station, from 7.30 pm on June 19 till 6.30 am on June 20.
They were produced before Judicial Magistrate P Saravanan at his residence. However, the magistrate was allegedly not aware of their injuries since they had been made to stand at a distance of 50 ft from the magistrate, citing “social distancing”.
Additionally, Rajkumar said the two of them had been threatened by the police to not reveal what happened at the police station, and that they would ruin the duo’s lives if they spoke about it.
Had the magistrate known they were gravely injured, they might have been admitted back at the hospital again instead of being taken to the Kovilpatti sub-jail, or may have been granted bail sooner.
Other legal experts in the field have accused the magistrate of negligence.
7. Right to legal aid: The law guarantees the right to an arrestee to use a counsel of his/her choice. The government would provide the arrested person free legal aid, which is expected to ensure that even those who cannot afford to hire a lawyer can undergo a trial.
While speaking about this, it can also be noted that the arrestee has the right to remain silent until his/her lawyer is consulted. No statements from the arrested person can be extracted forcefully.
No access to lawyers
The father and son did have access to lawyers.
8. Searching an arrestee: Section 51 of the CrPC allows a police officer to personally search an arrestee for evidence.
Evidence search in the case
There are no reports claiming that the duo was searched for “evidence”.
With the above revelations, it can be said that the law enforcement officials themselves (police) had violated a number of laws.
A few of the officers involved had been suspended for this, but is that enough? Has justice been ensured?