Custodial Deaths : Madras High Court Issues Inquiry Guidelines - Allow Family To Take Photos Of Body, Videograph Autopsy Etc
The Madras High Court has issued a slew of directions for the conduct of inquiry under Section 176(1)(A) CrPC in cases of unnatural deaths in custody."Every time a custodial death occurs, the legitimacy of the State suffers a big dent. That can be set right only by ensuring transparent investigation. A dead person is equally entitled to justice. I would call it posthumous justice....
The Madras High Court has issued a slew of directions for the conduct of inquiry under Section 176(1)(A) CrPC in cases of unnatural deaths in custody.
"Every time a custodial death occurs, the legitimacy of the State suffers a big dent. That can be set right only by ensuring transparent investigation. A dead person is equally entitled to justice. I would call it posthumous justice. Whenever someone suffers an unnatural death, the circumstances that led to it will have to be unearthed. Otherwise, there would be no closure," observed the Madurai Bench of the Madras High Court on Wednesday while issuing guidelines for inquiry in cases of unnatural death.
A Bench of Justice GR Swaminathan has inter alia directed that the body of the deceased will mandatorily be shown to his/ her family, both front and back, and they shall be allowed to take video and photos.
The direction comes in an alleged case of custodial death, whereby the bereaved family accused the authorities of conducting a 'farce of an autopsy' as part of their cover up.
It may be noted that when the Court ordered a second post-mortem of the deceased' body, several loopholes rose to the surface viz., (i) post mortem was not videographed properly and only brief clippings were recorded; (ii) doctors who conducted the postmortem did not have a master's degree in forensic medicine.
In this backdrop, the Court proceeded to issue the following guidelines:
- The Judicial Magistrate conducting the enquiry under Section 176(1)(A) Cr.P.C. shall ensure that the family of the deceased or its representatives are given access to see the body both front and back and are also allowed to take video and photos.
- No autopsy shall take place or commence without the next of kin having seen the body. Of course, if the family of the deceased refuses to see the body, even after so being permitted by the concerned Judicial Magistrate conducting the enquiry, the Judicial Magistrate can, in writing, permit the conducting of postmortem.
- The autopsy shall be carried out by a team of two doctors who have a master's degree in forensic medicine and are attached to a Medical College and Hospital in the State. In other words, what is called as forensic autopsy must be conducted.
- The autopsy shall be done by adhering to the norms laid down by the Hon'ble Division Bench in V.Eswaran vs Government Of Tamil Nadu, dated 16.04.2019 in W.P.No.10694 of 2019 and in W.P.(MD)No.78 of 2019, dated 28.09.2020.
- The whole body shall be x-rayed in order to find out if there are any fractures. The entire autopsy should be videographed from the start of the examination till its completion by adhering to the following six phases set out in Modi 'a Textbook of Medical Jurisprudence and Toxicology' 26th Edition edited by Justice K.Kannan. (these phases are annexed in the order itself)
The Court further directed that the autopsy report should be prepared expeditiously and handed over to the investigating officer in the case so that the filing of the final report is not delayed.
A copy of the autopsy report as well as video should be simultaneously given to the legal heir or representatives of the family of the deceased. This alone will enable them to take recourse to legal remedies immediately. If after receipt of the autopsy report, the legal heir/representatives of the deceased family give in writing that they intend to move the High Court, the body shall be preserved in the mortuary for atleast 48 hours. If the body is disposed of either by cremation or otherwise in the meanwhile, the very purpose of holding a second postmortem will be rendered infructuous, the Court said.
It added,
"All of us know that hasty cremation in the tragic Hathras gang rape case led to controversy. It is in the interest of the police to take the family of the deceased into confidence and avoid rushing things through. They are stakeholders in the process and the police have to treat them accordingly."
That apart, the Judge reiterated the guidelines on autopsy, recently issued by a Division Bench of the High Court in Rm. Arun Swaminathan v. State Health & Family Development Department & Ors.
"The Doctors are the most respected citizens of this country and they are doing yeoman service and also aid in the justice delivery system in medico-legal cases. Therefore, corrective measures have to be taken as otherwise, criminals would escape from the clutches of law because of the negligence and deliberate failure on the part of the Doctors who are doing post- mortems," the Court had observed therein.
Recently, the Supreme Court directed the installation of CCTVs in all police stations in the country and held that victims of human rights violations by investigating agencies will have the right to have the video footages.
Also Read :Custodial Deaths : What Is The Procedure For Inquiry?
In the case at hand, the Petitioner had alleged that he and his family were constantly being questioned and tortured by the Police in connection to a FIR lodged against his absconding elder brother. It was alleged that on a particular day, the Police visited their house and on finding the Petitioner's younger brother Ramesh alone, they beat him up and took him into custody. It was alleged that Ramesh did not return home and subsequently, he was found hanging on a tree in the nearby hillock.
According to the Petitioner, Ramesh was tortured by the local police and that he died as a result. In order to cover up the crime, the police have made it appear as if he committed suicide by hanging from the tree.
The investigation of the case has been transferred to CBCID, Madurai District, with a direction to conclude the investigation within a period of four months.
Case Title: Santhosh v. District Collector, Madurai & Ors.
Read Order