Urgent Appeal Update: AHRC-UAC-070-2011

ASIAN HUMAN RIGHTS COMMISSION - URGENT APPEALS PROGRAMME

Urgent Appeal Update: AHRC-UAC-070-2011



29 March 2011

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INDIA: Mother of two children thought of suicide, twice, fearing police persecution

ISSUES: Torture; Corruption; Violence against women; Judicial neglect; Child rights
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Dear friends,

The Asian Human Rights Commission (AHRC) has received information from Nervazhi, a human rights organisation based in Kerala, concerning the case of torture and intimidation of a family by the local police in Ernakulam district of Kerala state. The police, reportedly after accepting offers of bribe, abused, tortured and threatened the family asking them to withdraw a civil case that the victim family had filed against their neighbour. Upon refusal, the poli ce have reportedly registered a fabricated case against the family, including their minor son. Due to fear of further persecution by the police and from shame, the mother had reportedly made preparations to commit suicide with her two children, twice. Fortunately her husband and relatives intervened and prevented them from the attempt. The local media widely reported the incident. The police however are still threatening the family demanding them to remain silent and not to speak about the incident to anyone.

The mother has filed a complaint to the Inspector General of Police asserting that they are no more prepared to live under fear and with shame. She has also affirmed in the complaint that should anything happen to the family before action is taken on the complaint, it is the local police officers who should be held responsible for it. Despite the complaint and wide media coverage, the state police have taken no action against the accused police officers.

CASE NARRATIVE:

The following are the translations of the complaints filed by (1) Mrs. Susan (mother) and (2) Mr. Jose (father), to the authorities in Kerala, narrating the incident and praying for immediate protection and to investigate the complaint against the police officers.

(1) Mrs. Susan
Wife of Mr. Jose
Residing at Maapanchery House
Injathotty post, Kothamangalam
Ernakulam district, Kerala state

Sub: Complaint concerning verbal abuse, illegal arrest, torture, registering of fabricated cases and further intimidation by the local police against my family and me including our two minor children. A video interview with Susan is available here.

I am writing this complaint with utmost mental agony. The police officers that must protect the property and life of the people, after accepting offers of bribe of about Rupees 200,000 and having consumed alcohol and under the influence of alcohol, have , verbally abused, illegally detained, tortured, registered a fabricated case, and further continue to intimidate me and my family. The police have brutally tortured my husband who is innocent. Due to fear of further persecution and of shame, I had made preparations, twice, to commit suicide along with my two minor children by consuming poison. But my husband and the members of our family intervened, and have persuaded us not to do so. The police have repeatedly threatened us that if we complain to anyone about what has happened to us, they would burn us alive and due to that we were not bold enough to file any complaint for a while. We are not willing to live anymore in fear and with shame. Should anything happen to us before any action is taken on this complaint, I hereby affirm that those who might be behind such an incident are the local police officers, whom I have named in this complaint.

Sir, our family is comprised of my husband and our two children. My s on is 16 years old and my daughter is 13 years old. Since we do not have our own land, we lease properties owned by others and those belonging to the Periyar Valley project and cultivate seasonal crops like plantain, pineapple and beans in these lands for a living.

Since the past two years, my husband used to lease land belonging to the Periyar Valley project and we cultivate in this land. This time however we also cleared government land lying fallow near the leased land and did some extra labour to cultivate in this land as well. This government land also belongs to the Periyar Valley project, though we did not lease this land from the government. In September 2010, we had about 1200 plantains, the same number of beans beds and about 5000 pineapple plants ready for harvest in this land for which we did not have proper leasehold. The total investment for this work is about Rupees 200,000. If we get a reasonably good yield we could make about Rupees 400,000 in th e season, of which Rupees 200,000 would be our income, including our labour.

Our neighbour Mr. Pakkakudy Binoy Joseph was watching our work and he figured out that certain extend of land in which we have cultivated is not land that we have legally leased out from the government. So he approached the government and without informing us obtained lease from the government for the land that we have not obtained lease and claimed that the standing crop in that land now belongs to him. However on December 23 my husband and me harvested Kg. 200 of pineapple from what we have cultivated in this land. Binoy immediately approached the Kuttampuzha Police Station and complained that we have harvested the yield that belonged to him.

On 24 December the Sub-Inspector of Police from Kuttampuzha Police Station summoned my husband to the police station and ordered that we must pay Binoy Rupees 500 within seven days as compensation for the pineapple that we harvested. H e also instructed that we must pay this within a day. The officer threatened that if we failed to pay, he would take us into custody. My husband however tried to inform the officer that how Binoy came into possession of the land and why we claim that the harvest belongs to us. The officer instructed my husband that this is a matter that needs to be settled in a civil court, and asked my husband to pay Rupees 500 to Binoy. My husband agreed and returned home. On 3 January we approached Muvatupuzha Munsiff's Court and obtained an order against Binoy, temporarily restraining him from entering the disputed land until further orders from the court.

On 6 January at about 5pm, Assistant Sub-Inspector Tomy and a police constable from Kuttampuzha Police Station came to our house. Both officers were under the influence of alcohol. The officers ordered us that we must immediately withdraw the case at the Munsiff's court. We refused and informed the officer that the police m ust not threaten us. At this, the Inspector threatened us that if we failed to withdraw the case, they would detain our entire family at the police station after registering a false case against us. Hearing this, my husband raised his voice against the officer and informed him that he has no authority to say so. The officer then shouted at my husband that he would detain our children and me at the police cell if we refused to act according to his directions. The officer then left.

On the next day at about 7.45am Binoy and his family entered the disputed land breaching the restraining order from the court and harvested the yield. Three of Binoy's friends, Mr. Paterodiyil Varghese, Mr. Nirapel Joseph and Mr. Kalapurakkal Eldose were also with Binoy. When my husband came to know about this, he rushed to the place. I followed him. When I reached the land, I saw my husband bleeding from his palm and Binoy, Varghese, Joseph and Eldose assaulting my husband. I ran into the scuffle crying to spare my husband. At this they stopped assaulting my husband, and so he ran away from the scene. Since my husband was bleeding from his palm, he went to the local hospital to get the wound dressed.

At about 5pm, the Sub-Inspector accompanied by some police officers from Kuttampuzha Police Station cam in a jeep near our house. The vehicle belonged to one Mr. Manneel Aliyas. The officers stopped the vehicle for about three minutes in front of our house and left. Soon my children returned from school. At about 6.30pm I heard a jeep stopping in front of our house. Some police officers came inside the house compound. The Sub-Inspector of Police at Kuttampuzha Police Station, Mr. Sabu N. Kurian, came inside the house and asked my son where my husband was. My son replied that he did not know since he had left home in the morning. At this officer shouted at my son to wear a shirt and ordered that everyone should accompany him to the police station. Hearing this we started crying. I asked the officer why we were to come to the police station? The police officers did not listen and dragged us from our house into the vehicle in which they had come. My daughter was so scared that she in the meanwhile fell down unconscious. A police constable sprayed water on her face and continued dragging her into the vehicle. While we were being dragged into the vehicle, some police officers were going into our house and we do not know what they were doing inside our house. There were no women police officers among the group of officers.

Once all the officers returned to the vehicle we left from our house. Inside the vehicle I could smell alcohol and many police officers were also smelling alcohol and I assumed that were drunk and under the influence of alcohol. I was so scared and feared that the officers, under the influence of alcohol would hurt my children and me. I was so worried about the safety of my daughter at the ha nds of the drunken police officers. So I kept her on my lap, though she is a fully-grown girl and held her close to me. My son was seated beside me. Once the vehicle started moving, police constable Mr. Shameer abused me using the filthiest language suggesting me to have sex with him. After listening to this for a while, my son asked the officer not to speak like that to me, for which the officer punched my son on his chest. Seeing this we started to cry out loud. Soon I lost consciousness. When I regained my consciousness, I found that we were at a place called Neriyamangalam. We went further till Unnukal Police Station. There we were asked to get into another police vehicle and continued our journey. At about 7.45pm we reached Kothamangalam Police Station. The officers then detained us inside the police lock-up at the station. After a while the Circle Inspector of Police came near the cell door and shouted filth at us. Sometime during the night, the police brought a man ag ed about 20 years into the station and he was also locked up in the same cell where my children and me were detained.

On the next day at about 10am, the officers took us to Kuttampuzha Police Station in a police vehicle. We were detained at the police station till about 4pm. Our daughter was sent away from the police station along with my husband's brother who came to the station by then. At about 4pm, the officers brought my husband out from the police cell. He appeared weak and looked physically injured. The officers produced my husband, our son and me before the Judicial First Class Magistrate, Mr. Dinesh N. Pillai, at Kothamangalam, at the Magistrate's residence. My husband was so hurt that he could not walk or stand without me helping him. We complained to the Magistrate, that we were abused and tortured the police. The Magistrate told us that he has directed the police to take us to the local hospital for medical check-up. The police did not do so. To my in formation, the Magistrate did not write down our complaint or record our statement. Without asking any further questions, the Magistrate remanded my husband and me into judicial custody. The Magistrate ordered me to be sent to Ernakulam Sub-Jail and my husband to Muvatupuzha Sub-Jail. They produced my son before the Juvenile Board and released him on bail the next day. They released me on bail on 11th January and my husband on 15 January.

My husband is still undergoing treatment for the injuries he suffered from the police. Till 16 March 2011 we were to report on every Wednesday at Kuttampuzha Police Station and sign a register. On 23 January when we were at the police station, Sub-Inspector Mr. Sabu N. Kurian shouted at me that if we do not pay Rupees 25,000 to him, he would implicate my husband in the list maintained at the police station of the local ruffians.

We have later come to know that Binoy has offered the police that he could pay the office rs Rupees 200,000 after harvesting the yield from the disputed land. It appears that the police is aiding Binoy with an intention to share the illegal profit after taking the yields from the disputed land. For this, to intimidate us, the police have taken us into illegal custody, abused my daughter and me and assaulted my son and husband. My children and me are still scared that the police could come again and detain us once again.

I therefore request you to register my complaint, investigate it and take actions against the police officers named in this complaint and in the meanwhile provide us with adequate security from further persecution of the police.

Mrs. Susan
Injathotty
23 March 2011

(2) Mr.Jose
Aged 48 years
Maapanchery House
Injathotty post, Kothamangalam
Ernakulam district, Kerala state

Sub: Complaint concerning verbal abuse, illegal arrest, torture, registering of fabricated case and further intimidation by the local police against my family and me. A video interview of Jose is available here.

I am writing this complaint with utmost mental agony. The police officers that must protect the property and life of the people, after accepting offers of bribe of about Rupees 200,000 and having consumed alcohol and under the influence of alcohol have verbally abused, illegally arrested, tortured and further continue to intimidate me and my family. They brutally tortured me. Due to fear of further persecution and from shame, my wife and children had made preparations, twice, to commit suicide by consuming poison. But our family and I prevented them. The police have repeatedly threatened us that if we complain about what has happened to us, they would burn us alive and due to that we were not bold enough to file any complaint for a while. We are not willing to live anymore in fear and with shame.

Sir, our family is comprised of my wife a nd my two children. My son is 16 years old and my daughter is 13 years old. Since we do not have our own land, we lease other's properties including those belonging to the Periyar Valley project and cultivate seasonal crops like plantain, pineapple and beans in these lands for a living.

Since the past two years, I used to lease land belonging to the Periyar Valley project and we used to cultivate in this land. This time however we also cleared government land lying fallow near the leased land and cultivated in this land as well. This land also belongs to the Periyar Valley project, though we did not lease this land from the government. In September 2010, we had about 1200 plantains, same number of beans beds and about 5000 pineapple plants ready for harvest in this land for which we did not have proper leasehold. The total investment for this work is about Rupees 200,000. If we get reasonably good yield we could make some Rupees 400,000, of which Rupees 200,000 w ould be our income.

Our neighbour Mr. Pakkakudy Binoy Joseph was watching our work and he figured out that we do not have leasehold upon a portion of land in which we have cultivated and the harvest was ready. So he approached the government and without informing us obtained lease from the government for the land for which we did not obtain lease. He then claimed that our crop, which was in this land, now belongs to him. However on December 23 I harvested 200 Kg. of pineapple from what we have cultivated in this land. Binoy immediately approached the Kuttampuzha Police Station and complained that we have harvested yield that belonged to him.

On 24 December the Sub-Inspector of Police summoned me to Kuttampuzha Police Station and ordered that I must pay Binoy Rupees 500 within seven days as compensation for the pineapples that we have harvested. Then he insisted that we must pay the money within a day. The officer threatened that if I failed to pay, he would take me into custody. I tried to inform the officer that the harvest what Binoy now claims as his is mine and that he has obtained lease from the government to cheat me and snatch away the result of my hard work. The officer said that this is a dispute that could be settled in a civil court and asked me to pay Rupees 500. I agreed and returned home. On 3 January I approached the Muvatupuzha Munsiff's Court and obtained an order against Binoy, temporarily restraining him from entering the disputed land until further orders from the court.

On 6 January at about 5pm, Sub-Inspector Tomy and a police constable from Kuttampuzha Police Station came to our house. Both officers were under the influence of alcohol. The officers then ordered us that we must immediately withdraw the case at the civil court. We refused and informed the officer that the police cannot threaten us. At this the Inspector threatened us that if we failed to withdraw the case, they would deta in us at the police station after accusing false cases against us. Hearing this I raised his voice against the officer and informed him that he has no authority to do so. The officer then shouted at me that he would get my daughter and wife into the police cell. The officer then left.

On the next day at about 7.45am Binoy entered the land against which there was an order against him from the Munsiff's court and harvested the yield. When I came to know about this, I rushed to the place. When I reached the land I informed Binoy that he may do whatever he like with the land and the yield once the court decides the case. For this Binoy replied that he is harvesting the yield at the directions of Kuttampuzha Sub-Inspector of police. I informed Binoy that what he is doing is wrong and that he must wait until the case is over. Saying this I tried to stop Binoy from harvesting the beans. Binoy at the time tried to attack me with a sickle like knife that is used to harves t pineapple. I tried to fend off the knife and got hurt from the knife blade. At this Binoy's friends Mr. Paterodiyil Varghese, Mr. Nirapel Joseph and Mr. Kalapurakkal Eldose joined Binoy and started assaulting me. If my wife did not come to my rescues, they would have hurt be badly or even murdered me.

I escaped from the place and rushed home. Once at home I contacted the Deputy Superintendent of Police at Muvatupuzha. I informed the officer what had happened. The officer said that he does not have time to deal with such issues and asked me to complain to the Circle Inspector of Police at Kothamangalam.

My palm was bleeding and my body paining from the assault. I decided to seek treatment at a hospital in Kothamangalam. I also decided to complain to the local police. So I left home on my motorcycle. When I reached a place named Velliyelchaal, I saw the police vehicle from Kuttampuzha Police Station coming in my opposite direction. I stopped the motor cycle and waved at the police vehicle to stop. The police vehicle however came close to me and crashed at the motorcycle. When the police vehicle hit me, it threw the motorcycle and me into the roadside. My right leg got injured in the incident. At that moment I felt that the police is also against me. So I got up and ran away from the place and sought refuge at my friend O. U. Eldose's place. It was about 8.20am at the time. With help from Eldose, I got myself admitted at the Adimali hospital at about 3pm.

At about 8pm, I left the hospital ward to buy food for the night. Inside the hospital compound, a policeman approached me and asked whether I am Jose? When I said that Jose is my name, the officer asked me where I am from and conformed that I am from Injathotty. Immediately four other police officers joined the first officer and they forced me into a police vehicle that was in the hospital compound. They took me to Adimali Police Station. The Sub-Inspector of police Mr. Pramod asked me to sit on a chair in the station veranda. Then the Inspector asked me whether I would raise my voice at police officers and assaulted me with a baton on my left palm. He hit me hard that my middle finger got inflated and is still in the same condition after several months of treatment.

At about 9.30 at night the Sub-Inspector of Police from Kuttampuzha, Mr. Sabu N. Kurian, police constables Mr. Shameer and Mr. Joy and other six police officers whom I could identify even today came to Adimali Police Station. Shameer approached me and slapped me from both sides on my ears at the same time. Sub-Inspector Mr. Sabu shouted at the officers to throw me into the police vehicle. The officers forced me into the backside of the police vehicle and forced me lie flat with face up on the vehicle floor. The police officers kept their legs on my chest. When the vehicle reached a place called Neriyamangalam, Shameer applied red chillies in my eyes. Sinc e I could see what the officer was up to in the light of other vehicles, I tried to keep my eyes closed tight. Yet some chilly went inside my eyes and my eyes burned. Soon the vehicle reached Uunukal Police Station. The officers forced me out from the vehicle and brought me into the station veranda. Police Circle Inspector from Kothamangalam, Mr. Famous Varghese was there at the station.

When the officer saw me he kicked me on my stomach. I bent down from pain. At that time the Circle Inspector elbowed me on my spine three times. I fell down on the floor with face down. I almost lost consciousness. Then I felt someone pouring water on my waist. When I tried to turn around and see what was happening, I saw constables Shameer and Joy trying to pour water mixed with chilly powder on me. They then forced me lay down and poured the burning mixture on my genitals. Then Shameer kicked me on the right side of my chest. Then the officers forced me back into the police veh icle. The Circle Inspector ordered the police constables to keep the rear curtain of the police vehicle to be lowered so that persons in the vehicles coming from the rear would see me inside the police vehicle. After sometime we reached Kuttampuzha Police Station. I was thrown into the lockup and the Sub-Inspector Sabu instructed the police constables that I must not be assaulted any further and left.

After a while constable Mr. Obyes came inside the police cell and asked me to stand up. Then the constable asked me to stand as if I am sitting in an imaginary chair. I informed the constable that I could not do so since I was terribly hurt. Hearing me say this, the constable slapped me on my face with both hands thereby hitting me on both ears at the same time. So I tried to stand, as the constable wanted me to. I could not hold anymore and I collapsed on the floor. The constable again forced me to stand up. Then he shouted at me that I must obey when police office rs instruct me to do something and elbowed me once again. I fell down once again. Then the officer asked me to jog inside the prison. I could barely manage to do this. But I tried, and collapsed. The constable then shouted at me that he will not allow me to lay down and forced me to stand up again. I could not. At this the officer slapped me again.

When it was about dawn, I could not tolerate the pain anymore. Both my ears were paining. I informed the police constables that I might die in the cell. They then took me to Kuttampuzha Government Hospital. The doctor who examined me said that I must be admitted at the hospital. The constable however refused and said that it is enough that I am given some painkillers and to sent me back with them. The doctor obliged and they brought me back into the police station.

On the next day at about 10am I came to know that my wife and children are at the police station. By about 4pm, the police took me with my wife and son to the local Magistrate. I came to know that the police have falsely accused me of offences punishable under Sections 308 (attempt to commit culpable homicide); 323 (voluntarily causing hurt); 324 (voluntarily causing hurt using a weapon) read with 34 (conspiracy to commit a crime). My wife had to help me walk into the Magistrate's house. I informed the Magistrate, Judicial First Class Magistrate, Mr. Dinesh N. Pillai, of Kothamangalam, what the police have doe to us. The Magistrate informed us that he has directed the police to take us for a medical check up. But the police did not do so. The Magistrate also did not record our statements. The Magistrate then remanded us and I was sent to Muvatupuzha Sub-Jail and my wife to Ernakulam Sub-Jail. We are both on bail now. The case registered against us is false and we have not committed the crimes alleged against us.

I therefore humbly request you to take immediate actions upon my compliant and ensure our saf ety and further take actions against the police officers I have mentioned in my compliant.

(Signed)
Jose
Injathotty
23 March 2011

ADDITIONAL INFORMATION:

The case at hand demonstrates a pattern of police practice, which the AHRC has noted concerning cases reported from India. (1) It is very common for police officers to accept bribes and engage in criminal acts, like threatening and intimidating persons to settle private disputes. (2) The possibility for the police to register false cases against anyone is used as a tool to (a) silence the victims as well as to defend why persons are taken into custody and (b) to later to use the case as a bargaining tool to force the victims to withdraw cases against the police officers, should the victims initiate such actions (3) Use of torture as a tool to subjugate persons to authority (4) To bargain with or refuse a doctor's request or direction to admit a victim of torture at the h ospital (5) For the doctors to criminally oblige without any compulsion to a police officer's requirement not to admit a person brought for medical examination (6) For the judicial officers to issue remand orders without properly assessing the condition of the accused produced before them and for the police officers to produce detainees at the residence of the judicial officer after court hours (7) For the judicial officers to refuse or ignore their statutory duty to record the statements of persons produced before them as required in the Criminal Procedure Code, 1973.

The Criminal Procedure Code, 1973 require the following to be complied by police officers and judicial officers as mandatory pre-trial proceedings:

Section 46 of the Code deals with arrest. Sub-section (4) of Section 46 of the Code prohibits the arrest of a woman after sunset and before sunrise, unless in exceptional circumstances. Should an arrest be made of a woman during this time, i t must be made by a woman police officer. The Sub-section reads: Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made. In the case at hand, not only the arrest was made after sunset, but in the absence of a woman police officer.

Section 47 of the Code require the police to allow the women inmates in the house, before entering the house to arrest a suspect that the police suspects to be residing in the house and is according to the police be arrested for lawful reason. In this case, the police just marched into the house, asked for Jose and finding that Jose is not at home, arrested his wife, Susan, and two children of which one is a girl aged just 13 years.
Section 49 of the Code prohibits the police from using unnecessary restraint at the time of arrest. If the allegations made in the compliant are true, the officers have not only used unnecessary force at the time of arrest, but have in fact used criminal force at the time of arrest.

Section 50 of the Code mandates the arresting officer to inform the arrestee full particulars of the offence for which the person is arrested or other ground for such arrest. In this case neither did the police inform why the victims were arrested, but if the allegations are true, the arrest was an act of vengeance than an official formality.

Section 50-A requires: (1) Every police officer or other person making any arrest under this Code shall forthwith give the information regarding such arrest and place where the arrested person is being held to any of his friends, relatives or such other persons as may be disclosed or nominated by the arrested person for the purpose of giving such information. (2) The police officer shall inform the arrested person of his rights under sub-section (1) as soon as he is brought to the police station. (3) An entry of the fact as to who has been informed of the arrest of such person shall be made in a book to be kept in the police station in such form as may be prescribed in this behalf by the State Government. (4) It shall be the duty of the Magistrate before whom such arrested person is produced, to satisfy himself that the requirements of sub-section (2) and sub-section (3) have been complied with in respect of such arrested person. All of this has not been complied in this case

Section 51 of the Code requires the arresting officer to search the person arrested at the time of arrest, and if any of the person to be searched is a female -- which in this case includes Susan and her daughter -- such search to be conducted by a female officer. In this case, there are no female police office rs involved at any point nor are there any records available to prove that the police have complied with Section 51 of the Code.

Section 54 of the Code mandates the following: (1) When a person who is arrested, whether on a charge or otherwise alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice. (2) Where an examination is made under Sub-section (1) the registered medical practitioner shall furnish a copy of the rep ort to the arrested person or the person nominated by such arrested person. The Magistrate in this case, not only failed to ensure medical treatment, further failed to record the statement of the victims when they were produced before him.

As seen from the two statements above the police have failed to comply all of the above statutory procedures and the judicial officer before whom the victims were produced also failed to comply with the provisions of the Criminal Procedure Code.

Police in India enjoys impunity not only because the country lacks adequate framework for preventing police violence, but also because of the callous attitude of an alarmingly high number of judicial officers, particularly of the lower judiciary, thereby failing to follow the Criminal Procedure Code. This places the victims of police abuse at great peril. In most cases it is at the moment when a victim is produced before a judicial officer he gets the first opportunity to co mplain against the police, should there be any legitimate reason to do so. The mandatory requirement of a medical examination and a report thus made will go a long way as proof against a police officer, should there be any evidence of custodial violence. Unfortunately, as it has happened in this case, the judicial officers fail to comply with this provision of law, thereby throwing a veil of impunity upon the police officers who engages in corruption. This lacuna in following the process of law is exploited by the police officers as a strong defence if a prosecution is initiated against them. At that stage it is common for the police officer facing prosecution to claim and for the judges to believe as proof, 'the absence of a statement by the victim when the victim was first produced before a judicial officer' concerning custodial violence and further the absence of a medical examination and report as mandated under the Code for the allegation that the claim of custodial vio lence is wrong. This has been a pattern in India and continues to be so, despite the amendments in the law.

There is no excuse whatsoever for the judicial officers for not asking the detainee whether he has any complaint against the police and record the person's statement and further direct the person for medical examination. This requires the officer to do nothing special or any additional and extraordinary effort. Yet due to the callousness of the officers and further due to the neglect and prejudiced attitudes of the judicial officers this 'golden opportunity' to reasonably prevent torture in India is NOT utilised by the country's judiciary.

SUGGESTED ACTION:
Please write to the authorities mentioned below urging a prompt and independent investigation into the incident. The suspects must be arrested and brought to trial without any delay. The AHRC is also writing a separate letter to the UN Special Rapporteur on the question of torture calli ng for an intervention in the case.

The AHRC is also writing to the Chief Justice of Kerala, seeking an intervention in the case, particularly concerning the lack of attention of the judicial officers in complying the provisions of the Criminal Procedure Code, which could have otherwise contributed to the prevention of custodial violence in India to a large degree.

To support this appeal, please click here:

SAMPLE LETTER:

Dear ___________,

INDIA: Kindly take actions on the complaint of torture and intimidation of a poor family by the Kuttampuzha police

Name of victims:
1. Mrs. Susan, wife of Mr. Jose
2. Mr. Jose
3. Minor Sachin, aged 16 years, son of Jose
4. Minor Anu, aged 13 years, daughter of Jose
All residing at residing at Maapanchery House, Injathotty post, Kothamangalam, Ernakulam district, Kerala state

Names of alleged perpetrators:
1. Mr. Tomy, Ass istant Sub Inspector of Police
2. Mr. Sabu N. Kurian, Sub Inspector of Police
3. Mr. Shameer, Civil Police Constable
4. Mr. Obeyes, Civil Police Constable
5. Mr. Joy, Civil Police Constable
6. Mr. Pramod, Sub Inspector of Police
7. Mr. Famous Varghese, Circle Inspector of Police

Persons 1 to 5 above are stationed at Kuttampuzha Police Station, Kothamangalam, Ernakulam district, Kerala state; number 6 above is stationed at Adimali Police Station, Idduki district, Kerala state and 7 above is the Circle Inspector of Police, Kothamangalam Police Circle, Ernakulam district.

Date of incident: 6 and 7 March 2011
Place of incident: Initially within the jurisdiction of Kuttampuzha Police Station and later at Kothamangalam Police Station, Ernakulam district, Kerala state

I am writing to express my concern, requesting independent investigation and prosecution if required, of the police officers named 1 to 7 ab ove as 'alleged perpetrators', involved in the allegation of abuse of authority, of illegal arrest, use of abusive language, torture and registering of false case against the persons named 1 to 4 above as 'victims', of which 3 and 4 are minors and 3 a girl aged just 13 years.

I am informed that the police officers stationed at Kuttampuzha Police Station (persons 1 to 5 above named as 'alleged perpetrators'), reportedly after accepting offers of bribe from one Mr. Binoy, also residing within the jurisdiction of Kuttampuzha Police Station, have abused their authority and used excessive force, behaved in a manner that could be termed 'unbecoming of a police officer' allegedly under the influence of alcohol, tortured and have registered false case against victims 1 to 3 named above in order to force a settlement in a private dispute, between the said Binoy and Jose, a matter which is already pending before a Munsiff's Court having jurisdiction over the property in di spute.

I am informed that 'perpetrators' 6 and 7 have aided officers 1 to 5 in their illegal acts and has also behaved in manners contravening the provisions of the Criminal Procedure Code, 1973, particularly concerning the arrest and detention of persons.

I am informed that the police arrested the victims named above from two separate places at different times on the same day. A team of police officers led by Sub Inspector Mr. Sabu N. Kurian accompanied by civil police constable Shameer arrested Susan and her two children, 16-year-old Sachin and 13-year-old Anu from their residence at about 7pm on 7 January 2011. I am informed that the day before, on 6 January at about 5pm, Assistant Sub Inspector Mr. Tomy accompanied by another police constable from Kuttampuzha Police Station had approached the family at their residence asking them to withdraw a case, victim number 1. Mr. Jose had filed against his neighbour Mr. Binoy concerning a property in which Jose has allegedly cultivated vegetables and fruits like pineapples, beans and plantains. I am informed that officer Tomy shouted at Susan and Jose using filth and threatened to implicate them in false cases if they refused to comply with the order from the officer. It is alleged that Tomy and the other accompanying officer were under the influence of alcohol at the time when they shouted at Jose and Susan on 6 January. It is reported that the arrest of Susan and the two children the next day is an act of vengeance by the police.

I am informed that the police have failed to follow all procedural mandates when they arrested Susan and her children. There were no female police officers at the time of arrest. Even the manner in which the arrest was made is also contravening the law. They were not informed why they were arrested or where they were taken. Susan, along with her two minor children was detained at Kothamangalam Police Station on the night of 7 January.
I am informed that at the time of arrest, the officers shouted at Susan and her children using filth. It is alleged that inside the vehicle, civil police officer Mr. Shameer started suggesting to Susan to have sex with him in the presence of her two children, which Sachin, Susan's 16-year-old son protested and requested the officer not to speak like that to his mother, that too in front of his sister. It is alleged that Shameer punched Sachin on his chest for challenging the officer inside the police vehicle. I am also informed that at the time of arrest, Anu, the 13-year-old daughter fell unconscious and was dragged into the vehicle in which they were taken away from their home. I am also informed that Susan also fell unconscious inside the police vehicle due to fear and shock.

I am informed that Susan and her children were taken to Kothamangalam Police Station instead of Kuttampuzha Police Station for the night and were detained at the police station in a cell. It is alleged that the Circle Inspector of Police came to the cell at night and shouted filth at the mother and children and later another detainee was thrown into the cell to share the cell with the mother and two kids.

I am also informed that Jose, Susan's husband was arrested from the compound of a hospital in Adimali on 7 January and was taken to Adimali Police Station, where Sub Inspector Mr. Pramod assaulted Jose with a baton. Jose alleges that one of his fingers is still swollen from the injury that he suffered at the time. Jose alleges that on the same day at about 9.30pm Sub Inspector Sabu along with constables Shameer and Joy and other six police constables took Jose from Adimali Police Station to Unnukal Police Station. Jose alleges that in between he was abused and assaulted by the police officers, including applying chilly paste in his eyes.

I am informed that at Unnukal Police Station, Circle Inspector Mr. Famous Varghese kick ed Jose in his stomach in which also he suffered serious injuries. Jose also alleges that the Circle Inspector elbowed him at least three times at Unnukal Police Station. I am also informed that the police officers poured water mixed with chilly powder on Jose. Thereafter the police took Jose to Kuttampuzha Police Station, where also the police have reportedly tortured Jose inside the police cell.

The police produced Jose, Susan and their son Sachin before Muvatupuzha Judicial First Class Magistrate at about 4pm on 8 January. I am shocked to know that despite Jose and Susan informing the Magistrate that they were abused and tortured by the police, the judicial officer neglected his statutory duty to refer the victims for a medical check up and also further failed to record their statement.

Even though the police produced Jose for a medical check up upon his request on the same day at about early dawn, the officers had refused to admit him at the hospi tal despite being so advised by the doctor. Jose or Susan does not know whether there is a medical document to that effect with the police or whether the doctor has recorded his statement at that time. This however does not excuse the failure of the Judicial First Class Magistrate Mr. Dileep N. Pillai's failure to direct the police to provide medical treatment to Jose, a person who was in a visibly physically tormented condition at the time of production before the Magistrate since Jose could not move without Susan's help when they were produced at the Magistrate's residence.

The acute lack of attention to statutory responsibilities and the shocking absence of a active judicial mind of the judicial officer is visible from the fact that he found nothing wrong for the police to take into custody a husband and wife with their two minor children alleging that they have committed serious crimes like attempt to murder and when one of the suspect, Jose in this case, was produced before him in a physical state where he required help to stand up, walk or even to speak. The dereliction to judicial duty of the officer is further visible when he refused to pay attention when Jose and Susan complained to him that they were abused and assaulted by the police.

I am informed that Susan and Jose have filed written complaints to the Inspector General of Police as well as other authorities in the state seeking an investigation in the case. However, no investigation has been initiated in the case, neither has anyone recorded their statements.

I am informed that the Criminal Procedure Code, 1973 requires the police to follow strict procedures at the time of arrest and detention of persons, which is covered by Sections 46 to 51 of the Code. I am also informed that Section 54 of the Code mandates the judicial officer to guarantee that a person requesting for medical examination must be directed to be examined by a medical practitio ner by the judicial officer and a copy of the examination report provided to the complainant and to the judicial officer without delay. I am shocked to know that this 'golden opportunity' for the victims to initiate actions against the police officers who assaulted and abused them were denied none other than a judicial officer, which is a shame.

I therefore request you to:

1. The statements of Jose, Susan, Sachin and Anu recorded immediately by a judicial officer, preferably by a Sessions Judge;
2. The family given protection from any further intimidation and assault by the local police;
3. If the statements given by the victims divulge a case of police torture and abuse of authority by the police officers, an investigation ordered into the case immediately and all officers suspected in the case immediately suspended from active service until the investigation in the case is over;
4. The Chief Judicial Magistrate to monitor and overs ee the progress of the investigation;
5. All records concerning the case, as may be requested by the victims be provided to them;
6. A separate inquiry be initiated into the conduct of Judicial First Class Magistrate Kothamangalam, Mr. Dileep N. Pillai, concerning his dealing of the case, by the District and Sessions Judge, Ernakulam and the proceedings that Magistrate recorded concerning Crime 2/2011 of Kuttampuzha Police Station dated 8 January 2011 be immediately filed at the Session's Judge's office to prevent any tampering of records;
7. Jose provided immediate medical help at the expense of the state;
8. All proceedings of Crime 2/2011 of Kuttampuzha Police Station, be stayed until the investigation into abuse and torture is investigated.

Yours sincerely,

----------------
PLEASE SEND YOUR LETTERS TO:

1. Mr. V. S. Achuthanandan
Chief Minister
Government of Kerala
North Block, Secretariat
Thiruvananthapuram, Kerala
INDIA
Fax: +91 471 2333489
E-mail: chiefminister@kerala.gov.in

2. Mr. Kodiyeri Balakrishnan
Minister of Home Affairs
Government of Kerala
Room No.216, Third Floor
North Sandwich Block, Govt. Secretariat
Thiruvananthapuram 1, Kerala
INDIA
E-mail: minister-home@kerala.gov.in

3. Director General of Police
Government of Kerala
Police Head Quarters
Thiruvanandapuram, Kerala
INDIA
Fax: +91 471 2729434
E-mail: dgn@scrb.org

4. Justice D. Sreedevi
Chairperson
Kerala State Women's Commission
Near Lourdes Church, P.M.G, Pattom Post
Thiruvananthapuram- 4, Kerala state
INDIA
Email: keralawomenscommission@yahoo.co.in

5. Dr. P. Prabhakaran
Chief Secretary
Government of Kerala
Government Secretariat, Thiruvanandapuram
Kerala
India
Fax: +91 471 2 327176
Email: chiefsecy@kerala.gov.in

6. Mr. Oomen Chandy
Opposition Leader
Puthupally House, Jagathy
Thiruvannathapuram, Kerala
INDIA
Fax: +91 471 2315625

7. Mr. P. I. Shaik Pareeth (IAS)
District Collector, Ernakulam
Collectorate, Kakkanad
Ernakulam 682 030, Kerala
INDIA
Email: dcekm.ker@nic.in


Thank you.

Urgent Appeals Programme
Asian Human Rights Commission (ua@ahrc.asia)




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