A call for responsive magistracy to obviate police sores

Law is, to a surprising extent, common sense reduced to rules. No matter how mysterious a law is, the mystery largely vanishes when a clear and straightforward mind is applied to its understanding.

The institution of Magistrate has always been a subject of importance, be it in Ancient Rome, China or Common Law countries. In India, a Magistrate is given broad discretionary powers in reference to check curtailment of personal liberty, whose role starts immediately after the registration of FIR and remains even after the submission of charge sheet.

The object of this institution was never to act mechanically or automatically, but reasonably, so as to ensure due process of law at every stage of investigation. A Magistrate should be prepared to sacrifice personal convenience to the exigencies of the office s/he holds. However, the apparent practices tell otherwise, putting the criminal justice system in India at great peril.

The Code of Criminal Procedure (CrPC), being a product of the British era, is sparingly more oriented towards ruling authorities. As a procedure of law, arrest followed by remand is the most abused practice in criminal justice system. Therefore, a Magistrate should be a bulwark against unnecessary detention and abuse of power and process.

But the cases we explore in this piece and many others imply a laid-back approach to the judicial role of this institution.

In a recent unpleasant incident of 2020, a father-son duo was killed in police custody, depicting how apathetic magistracy coupled with obnoxious misuse of police powers can be noxious for civilians and cast a shadow on the criminal justice system. The family members of the father and son at Sathankulam near Thoothukudi in Tamil Nadu accused the judicial magistrate of sending them in remand without due process.

As per their statement, “the two were made to stand right at the entrance of the complex, near the gate, surrounded by seven-eight policemen. They were not taken inside. The magistrate appeared on the first floor, waving his hand at the policemen. An officer with Jeyaraj and Bennix shouted out, ‘Kovilpatti, remand’. And the magistrate cleared it.”

Magistrates, being the judiciary’s first interface with the public at large, and the courts of first resort, ought to zealously guard personal liberty and constitutional rights and have a greater responsibility on their shoulders.

The role of a Magistrate in countries like Germany and France, where the investigating agency is independent of the State, is not as important as it is in India, where the investigation is conducted by the agency against whom the offence is committed (State). In India, the role of magistrate becomes highly significant because aggravation and hostility towards accused is normal and investigation can never point the flaws on the part of state. To prevent this abuse of natural justice and to ensure neutral investigation, the reasoned intervention of a Magistrate is indispensably important.

Judicial and statutory guidance

There is certainly no void in terms of statutory guidance to trial magistrates. In Md. Ajmal Amir Kasab v. State of Maharashtra, it was held that a Magistrate is duty bound to ensure legal representation for the accused at the very first production and to give him an effective opportunity of being heard. If the accused does not have a private counsel, legal aid from the State is to be ensured. The Supreme Court also held that any lapse on this count by the Magistrate may entail departmental action against him.

It is imperative to cite a judgment authored by Justice V Krishna Iyer in the case of Mantoo Majumdar & Basdev Singh v. State Of Bihar, wherein two petitioners were imprisoned for seven years in various prisons on the basis that they were implicated in several cases of 1971 and 1972. In their habeas corpus petition, they impugned their continued detention in prison without trial. The petition was allowed and the petitioners were released. The judgment in this case is a must read for every magistrate.

In his judgment, Justice Iyer points out that Section 167(2) of the CrPC empowers the Magistrate to authorise the detention of an accused in such custody as he thinks fit for a term not exceeding 15 days in total. Further, no Magistrate shall authorise the detention of the accused person exceeding 90 days in grave cases and 60 days in less serious cases, and that on the expiry of the said period, the accused shall be released on bail if he is prepared to furnish bail.

In Arnesh Kumar v. The State of Bihar, the Supreme Court held that before authorization of detention, it is important that the Magistrate mentions his own satisfaction in his order. It cannot be based on the ipse dixit of the police. If the Magistrate finds that the arrest made by the police officer is not justifiable, then he can disallow police custody and release the person on bail or under a special order under Section 59 CrPC.

Statistics that trouble

As per reports in 2017, at least 100 persons, many of them possibly innocent, died in police custody. Not one police officer has been convicted so far for the deaths. Between 2008 and 2016, there were more than 300 deaths due to torture in police custody. Again, zero conviction. Not only that, between 2001 and 2018, a total of 1,727 people died in police custody. But only 26 officers have been convicted so far, most of whom are out on bail.

According to official figures tabled in Parliament by the Union Ministry of Home Affairs (MHA), 427 people died in police custody while 5,049 died in judicial custody between 2016 and 2018. In its recent report on custodial deaths in India, the National Campaign Against Torture said that the country had witnessed 1,731custodial deaths in 2019 – or about five deaths daily. In the end, all these deaths end up as mere statistics.

Lack of standard judicial scrutiny

Experience has shown that in many cases, investigating officers would deliberately state the age of the accused to be above 18 years in order to defeat the benevolent provisions of the Juvenile Justice Act, 2015. In many cases, children below 18 years of age have to spend a long time in jails due to a lack of enquiry by the concerned Magistrate.

To counter this, the Delhi High Court has directed that in case of a person arrested being within 18 to 21 years of age, the investigating officer has to mandatorily prepare an age memo and collect age proof of the accused. The court also has to conduct an age inquiry in such cases, if juvenility is pleaded.

Is there a way out?

A Constitution Bench of the Supreme Court must revisit its landmark judgment in the DK Basu case and rewrite “custody jurisprudence”. If and when it does, it must also issue a direction to the Central government to consider and take steps to implement, possibly through an amendment to the Indian Evidence Act, the recommendation of the 10th Law Commission of India to put the onus of any injury or death of an accused in police custody on the officer concerned.

Since most of those at the receiving end of torture in custody belong to financially or socially weaker sections of the society, it is time for the Central government to pass a Prevention of Torture Bill in Parliament.

An amendment can be made under Explanation II of Section 167 CrPC which says, "If any question arises whether an accused person was produced before the Magistrate, the production of the accused person may be proved by his signature on the order authorising detention."

This explanation acts as the fountainhead of abuse of police powers, accommodated by magistracy, as the signature on the detention order is obtained anywhere, and can be shown at a different place, with little to no information on such crucial details, as was the case in the Sathankulam custodial deaths. Therefore, video recording should by all means be arranged during production of accused before the Magistrate.

Annual Confidential Reports (ACRs) to evaluate lower court judges must be religiously made with transparency. It is only then that the vindictive bond of police and magistrates can really be looked into. This in turn would lead the Indian magistracy system towards being vigorously responsive, and heal the police sores that civilians keep suffering over and over again.

Mohd. Kumail Haider is a lawyer based in Uttar Pradesh and Zain Haider Kazmi is a fifth year student at Department of Law, Aligarh Muslim University.