“The power to authorise detention is a very solemn function. It affects the liberty and freedom of citizens and needs to be exercised with great care and caution. Our experience tells us that it is not exercised with the seriousness it deserves. In many of the cases, detention is authorised in a routine, casual and cavalier manner. Before a Magistrate authorises detention…, he has to be first satisfied that the arrest made is legal and in accordance with law and all the constitutional rights of the person arrested is satisfied.”

(Arnesh Kumar vs Bihar, 2014 (8) SCC 273)

This was the caution given by the Supreme Court to the magistracy of this country which is in charge of arrest and detention of accused of any crime. The Supreme Court had warned about the growing incidence of torture and deaths in police stations resulting in worst violations of human rights during the course of the investigation. It also said that reading of morning newspapers carrying reports of dehumanising torture and death in custody was indeed depressing. It affects the credibility of the rule of law and administration of the criminal justice system. The court said the community has rightly felt perturbed and the society’s cry for justice becomes louder (DK Basu, 1997).

The incidents at the Sathankulam Police Station leading to the torture and death of Jayaraj and Bennix had sent shockwaves not only within this country but even abroad. The State government which initially wanted to stonewall any serious inquiry finally relented due to public wrath and entrusted the investigation to the CBI. The judicial magistrate, Kovilpatti, who was ordered to conduct an inquiry into the deaths in custody as per Section 176 (1A) of the CrPC as early as June 23 is yet to submit his report though 45 days have elapsed.

However, based on the earlier investigation by the CBCID, several policemen were not only arrested and remanded in custody but also were suspended from duty. Some of the top police officers of Thoothukudi district were transferred out. The Madurai Bench of the Madras High Court, taking note of the seriousness of the issue through a suo-motu writ petition, is also monitoring the investigation.

What is the safeguard if an innocent person is accused of an offence and is arrested by the police for further investigation? Article 22 of the Constitution provides for the production of the accused before the nearest judicial magistrate within 24 hours of his arrest. On such production, the magistrate will have to decide whether their continued custody is required having regard to the offences levelled against the alleged offenders.

Time and again it has been made clear that the jurisdictional magistrates should not order mechanical remand merely because the police are seeking for one and that in cases where the offences if proved will not result in a conviction beyond seven years then the magistrate can also grant bail to the accused even at the time of remand. However, if he is persuaded to detain the accused in judicial custody, the magistrate shall ask the accused as to whether they were ill-treated by the police and whether they require any medical assistance. It is only thereafter the question of remanding them to a nearby prison will arise.

In the Sathankulam incident, the allegation made against them was that they had kept their shop opened beyond the lockdown conditions which had led to a wordy duel between the police and them. This offence, even if proved in terms of Section 188 IPC, can result in six months’ imprisonment. It was a fit case for grant of bail to the accused.

In the case of Jayaraj and Bennix, it was stated that the judicial magistrate did not even see them before ordering the remand. It was also stated that the remand report prepared by the magistrate merely recorded that there was no complaint received from the accused. One private channel which had access to the post-mortem proceedings done in the presence of the judicial magistrate, Kovilpatti clearly showed not only several injuries on the body of the two but also the flesh could be seen, indicating grievous injuries inflicted on them which automatically makes them eligible for immediate medical attention. It may not be true that the magistrate had discharged his duty entrusted upon him as the first post to safeguard the Constitutional guarantee. Even though a district jail at Perurani within 15 km from the Sathankulam District was available, they were ordered to be remanded in custody at the sub-jail at Kovilpatti, which is 104 km away.

The successive complaints from several others against the torture perpetrated on the arrested accused by the Sathankulam police also showed that it is the same judicial magistrate at Sathankulam who was responsible for remand of those accused also. In none of the cases, there was any recommendation for medical assistance and this conduct of the magistrate requires to be thoroughly inquired into. While the entire police team were transferred out of the station, the magistrate at Sathankulam continues to attend his court as if nothing has happened, though several complaints have gone to the High Court for initiating action against him. Is there any immunity for the judicial officers from any civil or criminal action being initiated with respect to his judicial work? Even the vintage legislation The Judicial Officers’ Protection Act, 1850 protects them only in acts done in good faith and not otherwise.

The Supreme Court has clearly held: “if the judicial officer conducted in a manner as would reflect on his reputation or integrity or good faith or there is a prima facie material to show recklessness or misconduct in the discharge of his duties or he had acted in a manner to unduly favour a party or had passed an order actuated by corrupt motive, the High Court by virtue of its power under Article 235 of the Constitution may exercise its supervisory jurisdiction. (Zunjarrao Bhikaji Nagarkar v. Union of India, 1999 (7) SCC 409)”.

If a judicial magistrate before whom an accused arrested for an offence is brought by the police and the judicial authority does not discharge the functions entrusted to him, what should be the consequences was also set out by the Supreme Court in many of its decisions. While deciding the appeal of the terrorist from Pakistan Ajmal Kasab, the Supreme Court emphasised the rights provided under Article 21 and 22 of the Constitution and the need for strictly enforcing those provisions by the magistrates. It directed: “...all the magistrates in the country to faithfully discharge the aforesaid duty and obligation and further make it clear that any failure to fully discharge the duty would amount to dereliction in duty and would make the concerned magistrate liable to departmental proceedings.” (2012 (9) SCC 1).

One wonders what action was taken against the judicial magistrate, Sathankulam who was responsible for remanding the father and son in judicial custody and to be detained at the Sub-Jail, Kovilpatti. If only he had discharged his judicial duties in accordance with the law, the two individuals would not have died due to the torture inflicted upon them and the lack of medical treatment extended to them. While every authority of the State had done their mite to alleviate the sufferings of the family of the deceased, it is not clear as to why the High Court has not initiated any action including calling for remarks from the magistrate concerned. Already the Bar and several organisations have sent in representations to the Chief Justice of Madras seeking for stern action against the magistrate whose negligence had led to the death of the two individuals.

A magistrate’s conduct should be above suspicion as they discharge a very sensitive and important Constitutional role. The Supreme Court very recently held: “They not only keep in check excesses of the executive, safeguard citizens’ rights and maintain law and order. Instead, they support the very framework of civilised society. It is the courts which uphold the law and ensure its enforcement. They instil trust of the Constitutional order in people and ensure the majesty of law and adherence to its principles” (Sadhna Chaudhary vs UP dt. 6.3.2020)

The Supreme Court held: “A Judge, like Caesar’s wife, must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and rule of law to survive, the justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty” (RC Chandel v MP High Court, 2012 (8) SCC 58).

Going by higher courts’ such observations and rulings, will not further inaction in Sathankulam incident make people think that the judiciary is attempting to protect its own member despite strong grounds for initiating action? Will the High Court look into the issue with all seriousness involved in this issue?

— (The writer is a former judge of Madras High Court)