Inquiry By RDO Into Ajitsingh Nagar Custodial Death Has No Legal Validity

To,
The Inquiry Officer (District Revenue Officer),
Executive Magisterial Inquiry Committee.

Sir,

Sub: Dissent note on the inquiry being held into the case of a custodial death in Ajitsingh Nagar police station by an Executive Magistrate and not by a Judicial Magistrate/Metropolitan Magistrate as is mandatory under Sec.176 (1A) of Criminal Procedure Code, 1973.

The Human Rights Forum is a citizens’ forum established with the objective of working for the protection of the constitutionally guaranteed/internationally recognized rights of the people.

We would like to state that the inquiry to be carried out by you into the case of a custodial death in Ajitsingh Nagar police station has no basis in law. The legal position and case law are clear that in case of a custodial death, the inquiry should be conducted by a Judicial Magistrate/Metropolitan Magistrate of the local jurisdiction of the offence. This is clearly spelt out in Sec.176 (1A) of Criminal Procedure Code, 1973. This provision was inserted by the Criminal Law Amendment Act (Act 25 of 2005) and has come into force on 23-06-2006.

Section.176 (1A) of Cr.P.C states that:

1A. Where,-

• (a) any person dies or disappears, or
• (b) rape is alleged to have been committed on any woman, while such person or woman is in the custody of the police or in any other custody authorised by the Magistrate or the Court under this Code, in addition to the inquiry or investigation held by the police, an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence has been committed.

The law being very clear on the matter, we fail to understand the legal basis of the present Inquiry being conducted by the District Revenue Officer upon the orders of the District Collector.

The judiciary had reiterated in several cases that in the event of a custodial death the inquiry should be by a Judicial Magistrate/Metropolitan Magistrate.

The High Court of Tamil Nadu in P. Pugalenthi v/s State of Tamil Nadu held that:

“Thus, this occurrence is governed by Section 176 of the Code of Criminal Procedure. Sub-Section (1) of Section 176 Cr.P.C., was amended by Amendment Act 25 of 2005 which came into force with effect from 23.06.2006. Prior to the said amendment, under Sub-Section (1) of Section 176 Cr.P.C., when any person dies while in the custody of the police, the Executive Magistrate concerned may hold inquiry into the cause of death. This inquiry by Executive Magistrate is either instead of or in addition to the investigation by the police. By Amendment Act, 25/2005, Sub Section 1 of Section 176 Cr.P.C., was amended, by which, the power of the Executive Magistrate to hold enquiry into the death of a person while in custody of the police has been done away with. Thus, on or after 23.06.2006, in respect of a death while in police custody, the Executive Magistrate has no power at all to hold inquiry.”

The court clearly held that: “Executive Magistrate has no power at all to hold inquiry”. Therefore, being an Executive Magistrate, you are not authorized to conduct an inquiry into the custodial death. Doing otherwise would amount to an illegality and dis-obeying of a High Court judgment.

The High Court of Andhra Pradesh in Mohamad Nazma Begum v/s Government of Andhra Pradesh held that:

“A plain reading of Section 176(1A) of Cr.P.C itself makes it clear that the death or disappearance of any person when such person is in the custody of the Police or in any lawful custody, it shall be enquired by a Judicial Magistrate or the Metropolitan Magistrate, within whose local jurisdiction the offence has been committed. Since the said provision came into force with effect from 23.06.2006, prior to the occurrence of the present event i.e., on 16.07.2008, it is imperative that the investigation be conducted by a Judicial Magistrate since the death occurred while the deceased was in the Police Station.”

We would also like to bring to your notice that apart from the inquiry by Judicial Magistrate/Metropolitan Magistrate, the police should be carrying out an investigation as they would into any case of death.

The High Court of Tamil Nadu in Tmt. R. Kasthuri v/s State of Tamil Nadu held that:

“To sum up, the conclusions are as follows: –

(1) Any information relating to the death or disappearance of any person or rape of a woman while such person or woman was in the custody of the police or in any other custody authorized by a Magistrate or Court, shall be registered as a case under Section 154 of the Code.

(2) Soon after the registration of the case, the Station House Officer shall forward the FIR to the jurisdictional Judicial Magistrate / Metropolitan Magistrate.

(3) The jurisdictional Magistrate shall thereafter hold an inquiry under Section 176(1A) of the Code.

(4) During such inquiry under Section 176 (1A) of the Code the Judicial Magistrate/Metropolitan Magistrate shall have power to record evidence on oath.

(5) On completing the inquiry the Judicial Magistrate / Metropolitan Magistrate shall draw a report and keep the statements of the witnesses, documents collected and the report drawn by him as part of case records.

(6) The Judicial Magistrate / Metropolitan Magistrate shall furnish copies of the statements of the witnesses recorded during inquiry under Section 176(1A) of the Code, the documents collected and the report drawn by him to the investigating police officer without delay.

(7) The investigating police officer shall, without being hindered by the inquiry by the Judicial Magistrate/Metropolitan Magistrate, conduct investigation under Chapter XII of the Code thoroughly and submit a final report to the jurisdictional Magistrate / Court under Section 173 of the Code.”

(8) If the case relates to police encounter, as directed by the Hon’ble Supreme Court in People’s Union for Civil Liberties and another v. State of Maharashtra and others, 2014 (11) Scale 119, the investigation shall be entrusted to either CB CID or a police team of another police station under the supervision of a senior police officer (at least a level above the head of the police party engaged in the encounter).

(9) The Judicial Magistrate/Metropolitan Magistrate shall not forward the original records of the inquiry under Section 176(1A) of the Code either to the District Collector or to the Government.”

The High Court spoke in no uncertain terms that an FIR should be filed according to Section.154 of Cr.P.C., and it should be forwarded to jurisdictional Judicial/Metropolitan Magistrate for an inquiry according to Section. 176 (1A) of Cr.P.C. However, nothing of the kind has happened in this case. This amounts to a violation of the law and several High Court judgments.

We have already made submissions to the Commissioner of Police, Vijayawada (Annexure-I) and Krishna District Collector (Annexure-2 and Annexure-3) regarding the lawful necessity of conducting an inquiry into the Ajithsingh Nagar case by a Judicial Magistrate/Metropolitan Magistrate and not an Executive Magistrate.

Hence, we demand that the present inquiry, which has no legal sanctity, must be declared null and void. A fresh notification has to be issued and inquiry conducted meeting the requirements of Section 176 (1A) of Cr.P.C.

Yours truly

14.05.2019
Vijayawada