The Madras High Court has criticised Crime Branch-Criminal Investigation Department (CB-CID) for having chosen to register a case only under Section 304ii (culpable homicide not amounting to murder) and not under Section 302 (murder) of the Indian Penal Code (IPC) against the police personnel reportedly involved in a case of custodial death.
Passing orders on a writ petition filed by the victim’s mother seeking a Central Bureau of Investigation probe, Justice G.K. Ilanthiraiyan asked: “When the eighth respondent found that there are materials to attract the major offence under Section 304 (ii) of IPC, what is the reason the eighth respondent had failed to alter the offence under Section 302 of IPC?”
After directing the investigating officer concerned to alter the offence to Section 302 and file a final report within eight weeks since it was already 10 years since the custodial death took place, the judge directed the State government too to pay an interim compensation of Rs. 5 lakh to the mother, wife and a minor child of the deceased within four weeks.
The compensation could be recovered from the accused police personnel in the manner known to law, he added. The judge agreed with the petitioner’s counsel P. Pugalenthi that the postmortem report clearly reveals that the victim had been subjected to third degree treatment and therefore it could not be said that the policemen had no intention to murder.
“There is a great responsibility on the police authority to ensure that a citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious,” the judge wrote.
He went on to add: “The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law. In the case on hand, a poor young man aged 22 years is killed... It is a clear case of murder and all the accused shall be prosecuted for the offence under Section 302 of IPC.”
Adverting to the facts of the case, the petitioner’s counsel pointed out that the deceased Nithya alias S. Nithyaraj was a member of Friends of Police and was attached to Ayanavaram police station in Chennai. On January 11, 2012, personnel from the ICF police station had picked him for inquiry in connection with a case of robbery.
He was kept in police custody for four days and produced before a judicial magistrate only on January 14, 2012. The doctor in the Puzhal central prison had referred him to a Government hospital for treatment and he was shuttled between the Rajiv Gandhi Government General Hospital and the Government Royapettah Hospital for two days.
On January 16, 2012, the youngster died on the way to the Government Royapettah hospital from the jail hospital leading to a CB-CID inquiry. Since there was no significant progress in the investigation for several years, his mother S. Poongulali had approached the High Court in 2020 seeking a CBI probe.