Jayaraj-Bennix Custodial Deaths : Supreme Court Dismisses Habeas Corpus Plea Filed By Accused Cop Against Remand

"We dismiss this writ petition. However, dismissal of this writ will not come in way of the petitioner to pursue other appropriate remedies as permissible in law. This plea is filed in view of subsequent orders passed by sessions court that cannot be the subject matter of writ jurisdiction" the Bench said.

A Division Bench comprising Justice AM Khanwilkar and Justice Sanjeev Khanna has however directed the Registry to list the bail plea filed by the petition Raghu Ganesh before the top court expeditiously. Raghu Ganesh had earlier approached the Supreme Court challenging the order of Madras High Court which dismissed his bail application.

During the hearing, Senior Advocate Anjana Prakash appearing for the petitioner referred to directions issued by the Top Court on 23rd March, 2020 relating to remand of undertrial prisoners during Covid.

"Thereafter he was produced through VC and Court has passed orders. You were subsequently produced", the Bench said

"But the interim period, that is illegal detention", Senior Counsel Prakash said.

"For that, you can ask for damages, you can ask for whatever consequences flow from that. You can take recourse to that remedy, not writ petition. Your writ is to quash the orders, those orders cannot be quashed now." the Bench said.

"What recourse can I have if the High Court passed such orders. High Court could not have done it", Senior Counsel Prakash said.

The High Court order is still subsisting. The Trial court has taken it upon itself to direct the production.

"Can you set aside a judicial order in writ petition? You've to take recourse to appropriate remedy and not writ petition" ,Justice Khanwilkar remarked.

"That would be correct approach insisting for bail, not writ petition", the Bench orally observed.

In the present writ petition, the petitioner has challenged the orders dated 3rd June, 16th June, 2nd July and 15th July passed by the Additional Sessions Judge for adjourning proceedings of his case for the recording of evidence, without passing any formal orders as required in terms Section 309 Cr.P.C regarding extension of the remand.

Further, the petitioner has argued that he was not produced before the Additional Sessions Judge on any of these occasions.

According to the plea filed through Advocate Yusuf, since the petitioner has not been produced before the ASJ either physically or through video conferencing, his custody in absence of a Formal Judicial order his custody is illegal and unauthorised requiring his immediate release.

The petitioner is aggrieved by the order passed by the Madras High Court dated 17th May in a suo motu writ petition whereby it extended all remands till June 30. The order was passed noting that it may not be possible to produce remand prisoners for extension of remand before various courts in the States in person or through VC either under Section 167 or 309 of the the Code of Criminal Procedure.

The petitioner has argued that through this order, the High Court has overruled provisions of law established by the legislature.

Further, it has been argued that even though the extension of remand through High Courts order was only till June 30th, the Trial Court without extending the remand has been detaining the petitioner.

The petitioner has challenged his custody since 17th May, 2021 followed by several orders of Additional Sessions Judge for being illegal and contrary to Supreme Court's March 2020 order relating to remand of undertrial prisoners during extra ordinary circumstances of the Covid 19 pandemic.

"Since the order dated 17th May is non-est in the eyes of law, then the detention of the petitioner followed by the said date is illegal." the plea argues.

The petitioner has therefore approached the top Court challenging his custody arguing that the same is illegal and in contravention with Article 21 of the Constitution according to which no person can be deprived of his life or personal liberty except according to procedure established by law.

It may be noted that a vacation bench comprising Justices Vineet Saran and BR Gavai had earlier refused to allow urgent listing of the bail plea filed by P Raghu Ganesh, who was the Sub-Inspector of the Sathankulam police station, where Jayaraj and Bennix were subjected to custodial torture in June 2020.

The bench had observed that this was a case where a father and son were brutally "beaten black and blue" to death after taking them to custody for the mere reason that they violated COVID lockdown. The bench also observed that the records showed that there was an eyewitness for Raghu Ganesh's involvement in the crime.

"This is a very bad case. This is a case where you should be in jail for some time", Justice Saran had observed

Jayaraj and Bennix were taken into custody on June 19 last year on the allegation that they had kept their mobile phone shop open beyond the permissible hours during the lockdown. They were tortured in police custody, leading to their deaths.

The custodial deaths sparked of large scale public protests and social media outrage across the country. The Madras High Court took suo moto cognizance of the matter and ordered the Superintendent of Police, Thoothukudi, to inquire into the incident and submit a status report. An order was given to videograph the autopsy, which the court ordered to be done by a panel of three experts in the presence of a magistrate after the police completed its inquest proceedings.

The Tamil Nadu government handed over the investigation to the CBI. The CBI has filed charge sheet in the case.

Case Title: P Raghu Ganesh vs Union of India