Custodial deaths dent State's legitimacy: Madras High Court issues directions for body's preservation, family's access to body, autopsy report

In the interest of ensuring transparency in cases involving allegations of custodial deaths, the Madras High Court on Wednesday issued various directions including for the preservation of the body of the deceased and to ensure that the family has access to the body and the autopsy report (Santhosh v. District Collector, Madurai and ors). .Given that the foundations of any democratic government rests on public confidence and acceptance, Justice GR Swaminathan observed: "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.".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.Madras High Court.In furtherance of this goal, the judge proceeded to issue the following directions to be followed in cases involving custodial deaths:.The Judicial Magistrate conducting the enquiry under Section 176(1)(A), CrPC 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. 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 Division Bench in V Eswaran v. Government Of Tamil Nadu passed in April 2019. 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 the six phases in Modi 'a Textbook of Medical Jurisprudence and Toxicology' 26th Edition edited by Justice K Kannan. The Court has also detailed what these phases are in the order, which includes the steps to be following while video recording the autopsy, the time period within which the autopsy must be done, the steps to be followed during the autopsy and the qualifications of the persons conducting the autopsy. 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 at least 48 hours. .The Court added, that if the victim's family intends to move the High Court,"If the body is disposed of either by cremation or otherwise in the meanwhile, the very purpose of holding a second post-mortem will be rendered infructuous. 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.".Justice Swaminathan issued the directions in a plea moved to exhume the body of a man alleged to have died following custodial violence by the Tamil Nadu police. Apart from allowing the plea for exhumation, the Court also directed that further investigation in the case be transferred to the CBCID in the interest of justice. .Read the order: