From, Jayaram Venkatesan Convener - Arappor Iyakkam 140A Rukmani Lakshmipathi Salai Chennai 600 008

To, Hon'ble Justice Mr. Amreshwar Pratap Sahi Chief Justice of Madras High Court Madras High Court High Ct. Rd, Parry's Corner, George Town, Chennai, Tamil Nadu 600108

Subject: Seeking action against Magistrate Mr B. Saravanan for Judicial Impropriety, violation of Supreme Court and High Court guidelines on arrest and for negligence - Mechanically passing remand orders of Late Mr P. Jayaraj and Late Mr Benicks leading to their custodial murder

Hon'ble Justice Mr. Amreshwar Pratap Sahi,

Arappor Iyakkam is a people’s movement working towards Transparency and Accountability in Governance in TamilNadu.

The people of Tamil Nadu are shocked and devastated at the custodial murder of P. Jayaraj (aged 59) and his son Benicks (aged 31) of Sattankulam who died on June 23, 2020 and June 22, 2020 respectively. After being arrested, the police brutally assaulted and tortured them in the Sathankulam Police station and on their way to Kovilpatti Sub-Jail. This representation seeks disciplinary and criminal action against Judicial Magistrate Mr B Saravanan of Sathankulam Magistrate court for criminal negligence leading to death, dereliction of duty and contempt of court orders. The Magistrate mechanically remanded P.Jayaraj and Benicks to a 14-day judicial custody without application of mind and without even determining whether there was a need for remand at all. In addition, the Magistrate should have looked at the health conditions (apparent from their physical injuries) of the two and sent them to a hospital. If the Magistrate had performed his duty in accordance with law and took due care, the two people would not have died.

Actions of the Magistrate Mr B. Saravanan is against numerous court orders and principles of natural justice, and has deprived P.Jayaraj and Benicks of their fundamental right of protection of life and personal liberty and right to judicial remedy. Custodial violence by the Police stands undeterred because of their nexus with many magistrates in the lower judiciary, doctors not giving treatment/ false fitness certificates and jail authorities. This nexus is clearly visible in the case of P.Jayaraj and Benicks, which led to their untimely death.

P.Jayaraj was arrested on Friday, June 19 around 8:30 PM allegedly for keeping his shop open beyond 9 PM. Benicks went to the police station to enquire about his father. Following that, he was also arrested. The police physically assaulted both of them through the night. P.Jayaraj and Benicks were presented before Magistrate B Saravanan on June 20 around 2:30 PM.

Passing remand orders is a judicial function of the magistrate where he needs to satisfy himself that there are sufficient grounds on which the accused needs to be sent on custody. It is reliably learned that the Judicial Magistrate B Saravanan did not look at Jeyaraj and Benicks properly, and neither did he enquire about their health. It also needs to be determined if the FIR, Arrest card, case diary, and other relevant documents were looked at by the Magistrate, for even a casual perusal of the FIR indicates that the two accused had suffered some internal injuries. The Magistrate did not even determine if a remand was required. Therefore, in this case, the Magistrate has passed remand orders in a mechanical manner rather than applying his mind. It has been clearly established through multiple Supreme Court and High Court orders that Magistrates cannot pass remand orders mechanically and have to apply their mind.

1) Unlawful Remand - Remand not required for offences with imprisonment not exceeding seven years

The police filed charges against P.Jayaraj and Benicks under sections 188, 269, 294(b), 353 and 506(2) of the IPC. The alleged acts of P.Jayaraj even as stated in the FIR only attracts sections 188 - Disobedience to order duly promulgated by public servant and section 269 - Negligent act likely to spread infection of disease dangerous to life of the IPC. However, adding irrelevant charges of Sections 294(b), 353 and 506(2) IPC shows the malafide intent of the police. The Magistrate should have questioned the mismatch between the stated facts and offences alleged.

None of these offences are punishable with imprisonment exceeding seven years. Law mandates that arrest should be made only when absolutely necessary. According to Section 41(a) of the CrPC, the police is obliged to issue only a "notice of appearance” for any offence where the arrest of the person is not necessary. In this case, arrest or the subsequent remand of P Jayaraj and Benicks was unnecessary.

2) Relaxation of Remand during Covid by Supreme Court

In March 2020, the Supreme Court passed directions to control the spread of coronavirus in Prisons with reference to Article 21 of the constitution. The Supreme Court had also stated that existing prisoners should be let out on parole or interim bail to decongest jails and remand homes. After such orders, it is shocking to see the Magistrate passing remand orders in cases where remand is not even required.

3) Injuries of Jayaraj and Benicks were not questioned

The Magistrate failed in his duty as per section 6(1) of the Criminal Rules of Practice, 2019 to check if there was any injury on Jayaraj and Benicks and also record the injuries in the remand order and the remand warrant as well. The Magistrate should have taken note of the bruises on them and sent them to hospital instead of remand. The injuries would have clearly shown that they were due to brutal torture by the Police. In addition, the Magistrate should have also questioned and enquired Jayaraj and Benicks about their injuries.

The FIR states that the injuries to Jayaraj and Benicks were because they both rolled on the road in response to the police requesting them to close the shop. However, this does not seem plausible. The nature of injuries that were visibly apparent could not happen because of rolling on the road, also it is very unlikely that any person would hurt themselves in the given context. All this should have raised a red flag, given the role of a magistrate, and it was his duty to enquire with Jayaraj and Benicks about the injuries and send them to a hospital.

4) Fake FIR

The absurd statements in the FIR (of rolling on the road and injuring themselves) and mismatch between the sections assigned and the offences should have raised questions about the genuineness of the FIR and the details stated therein. However, the Magistrate abdicated his judicial responsibility and recklessly remanded Jayaraj and Benicks contributing to their ultimate demise.
This is a case that has shocked the collective conscience and people have started to demand accountability from all agencies that failed two innocent citizens and deprived them of their right to life. Whilst doctors, prison authorities and the concerned police officials should be subject to appropriate departmental action and criminal prosecution, we are submitting this representation to you as the highest judicial authority in the State of Tamil Nadu to initiate necessary reforms as well as to initiate action against the Magistrate Mr B Saravanan. The Magistrate has flouted guidelines of the Hon’ble Madras High Court and the Supreme Court which have clearly held that detentions cannot be authorised in a mechanical manner. In State of Tamil Nadu vs Tr.Nakeeran Gopal (Crl.OP No.26888 of 2018 and Crl.MP No.15519 of 2018), the Hon’ble Madras High Court observed and held thus:

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 under Section 167 CrPC, 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 are satisfied. If the arrest effected by the police officer does not satisfy the requirements of Section 41 of the Code, Magistrate is duty-bound not to authorise his in further detention and release the accused. In other words, when an accused is produced before the Magistrate, the police officer effecting the arrest is required to furnish to the Magistrate, the facts, reasons and its conclusions for arrest and the Magistrate in turn is to be satisfied that the condition precedent for arrest under Section 41 CrPC has been satisfied and it is only thereafter that he will authorise the detention of an accused. The Magistrate before authorising detention will record his own satisfaction, may be in brief but the said satisfaction must reflect from his order. It shall never be based upon the ipse dixit of the police officer, for example, in case the police officer considers the arrest necessary to prevent such person from committing any further offence or for proper investigation of the case or for preventing an accused from tampering with evidence or making inducement, etc. the police officer shall furnish to the Magistrate the facts, the reasons and materials on the basis of which the police officer had reached its conclusion. Those shall be perused by the Magistrate while authorising the detention and only after recording his satisfaction in writing that the Magistrate will authorise the detention of the accused. In fine, when a suspect is arrested and produced before a Magistrate for authorising detention, the Magistrate has to address the question whether specific reasons have been recorded for arrest and if so, prima facie those reasons are relevant, and secondly, a reasonable conclusion could at all be reached by the police officer that one or the other conditions stated above are attracted. To this limited extent the Magistrate will make judicial scrutiny.

… Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:

4.The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention

8.Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

17)…….While considering the application for remand, the learned Magistrate must be first satisfied that the arrest made is legal and in accordance with law. The Magistrate has to get acquainted with the progress of investigation which would appear from the case diary. Since remand is a fundamental judicial function of a Magistrate, the Magistrate has to satisfy himself that there are reasonable grounds therefore and that the materials placed before him justify the remand of in the accused. While remanding the accused, it is obligatory on the part of the Magistrate to apply his mind to the facts of the case and not to pass remand order automatically or in a mechanical fashion.

I may also refer to a 2012 order of this Hon’ble Court where Justice K Chandru, in the case of an 19-year old teenager (Arun) being tortured in custody held that magistrates were behaving like rubber stamps, mechanically remanding the accused without even recording their statements and taking notes of injuries. Justice K Chandru also held that it was the magistrate’s duty to record injuries on the body of the accused and found out if he was ill-treated in custody. He also directed that the magistrate who remanded the teenager, should face action.

The Supreme Court held in Arnesh Kumar v. State of Bihar that the magistrates do not authorise detention casually and mechanically. In Manubhai Ratilal Patel vs State Of Gujarat & Ors, the Hon'ble Supreme Court has observed:

"The act of directing remand of an accused is fundamentally a judicial function. The Magistrate does not act in executive capacity while ordering the detention of an accused. While exercising this judicial act, it is obligatory on the part of the Magistrate to satisfy himself whether the materials placed before him justify such a remand or, to put it differently, whether there exist reasonable grounds to commit the accused to custody and extend his remand. The purpose of remand as postulated under Section 167 is that investigation cannot be completed within 24 hours. It enables the Magistrate to see that the remand is really necessary. This requires the investigating agency to send the case diary along with the remand report so that the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police remand or justification for judicial remand or there is no need for any remand at all. It is obligatory on the part of the Magistrate to apply his mind and not to pass an order of remand automatically or in a mechanical manner. It is apt to note that in Madhu Limaye (supra), it has been stated that once it is shown that the arrests made by the police officers were illegal, it was necessary for the State to establish that at the stage of remand, the Magistrate directed detention in jail custody after applying his mind to all relevant matters"

It is also important to highlight that this is not a standalone case of Magistrate passing remand orders mechanically. In an overwhelming majority of cases, remand orders are passed automatically by the Magistrates who fail to understand how crucial their role is in protecting fundamental right of life and liberty (Article 21) of citizens. This case exemplifies the dangers and pitfalls of Magistrates abdicating their judicial responsibilities when faced with authorising detention and remanding persons. The Madras High Court in February 2019, held that the police must be made to understand that all criminal cases need not necessarily involve arrest of accused persons during investigation and an effective investigation can be done even otherwise and a change in attitude will bring down unnecessary filing of anticipatory bail petitions. The court also stated that the Tamil Nadu police needs to pull up their socks and show more quality and maturity in investigation techniques.

Section 6(1) of The Criminal Rules of Practice, 2019 states, “Remand.− (1) No accused shall be placed under remand for the first time, unless he is produced physically. At the time of remand, the Judge/Magistrate shall see if there is any injury on the person of the accused. Any such injury shall be recorded in the remand order and the remand warrant as well. It is permissible to make extensions of remand through the medium of electronic video linkage.” Despite the clear mandates of the Criminal Rules of Practice and directions in several cases of the Supreme Court and the High Court, the observed norm is that Magistrates do not perform their functions despite knowing fully well the consequences of their inaction. Their omission, in failing to apply their mind, especially in cases of remand is culpable. Inaction of the Magistrate in the case of Mr.Jayaraj and Mr.Benicks cost their lives and he has enabled the custodial torture and murder.

During this period of COVID and lockdown to contain the same, the powers of the police have drastically increased, and several instances of custodial excesses and deaths are coming to light in Tamil Nadu and across the country. This incident has created a crisis of credibility of State institutions including the Judiciary. Through this representation, I request your intervention to ensure that people’s faith and trust in the Judiciary is restored.

For the reasons stated above, it is therefore prayed that the Chief Justice may be pleased to immediately initiate disciplinary and criminal action against Magistrate Mr B. Saravanan and also dismiss the Magistrate from service immediately following the due procedure of the law, and thus render justice.

Sincerely

Jayaram Venkatesan Convener - Arappor Iyakkam Ph: 9841894700