‘All we got was his dead body’

Painful memories have resurfaced for Leonard Valdaris 62 following the Bombay High Courtrsquos recent observation in the custodial death of Akshay Shinde 24 in an alleged fake police encounterA little more than 10 days ago on January 20 Public Prosecutor HS Venegavkar informed the HC Bench that the police would take appropriate steps in accordance with the law keeping in mind the magistratersquos findings in the alleged encounter death of Akshay Shinde who was an accused in the Badlapur POCSO case The magistrate in his inquiry report had come to the conclusion that the five persons named in the report were responsible for the death of Akshay ShindePiciStockldquoThese five persons are the five policemen who had taken custody of Akshay from Taloja jailrdquo said advocate Amit Katarnaware who is appearing on behalf of Akshayrsquos father Anna Maruti ShindeLeonard Valdaris a resident of Poonawala Chawl Dharavi has been fighting a similar case of alleged custodial torture and death of his son Agnelo alias Richie 24 in the custody of Government Railway Police Wadala in April 2014 Valdaris has accused eight policemen and a woman officer of the extrajudicial killing The irony is that for the last eleven years the matter is still dragging on in the courts and the accused police personnel are back in uniform after their initial suspension in the caseDr Harish Shetty consulting psychiatrist Agnelo right and Xavier Valdaris Adv Amit KatarnawareValdaris says ldquoIn the case of Akshay Shinde also his parents will be made to run from pillar to post for years or even decades like in most custodial cases where either the trial is stalled or moves at a snailrsquos pacerdquoOn April 10 2014 Shrinivas Kishan Veeramallu had boarded the first class compartment of a local train at Wadala railway station at 910 pm At Dockyard railway station one of a group of four men asked him for the time and when he was about to reply they allegedly pushed him and snatched his gold chains and rings cash spectacles and his steel lunch boxIndia has not yet ratified the UN Convention against Torture Rep presentationaliciStockThe Wadala railway police picked up Agnelo as a suspect The prosecution case was that Agnelo was one of the four men in the local train and the CCTV cameras at the railway station had captured a person resembling him hence the police had picked him up for questioning and had brought him to the railway police station at Wadala ldquoHe was dragged out of the house in the middle of his sleep and two days later all we got was his dead bodyrdquo recalls Valdaris Agnelo was the same age as Akshay Shinde he saysAgnelorsquos grandfather Xavier Valdaris 94 waited for 10 years to see justice done but died on August 18 2024 his wish unfulfilledValay Singh and Leonard ValdarisHe was laid to rest in the family grave at Our Lady of Lourdes cemetery Sion ldquoIt is the same grave where his grandson Agnelo was buried in 2014 and his younger son Don Bosco was buried in 1994 Don Bosco was brutally attacked with sharp weapons when he was a college student and had tried to stop some local boys from harassing a girlrdquo says ValdarisldquoWe will not get justice from the courts here why are you after this case leave it to God he will punish the policemen who took away my childrdquo were Xavierrsquos last lines to his sonAdv Rohini Salian Suhas Chakma and Venkatesh NayakldquoIt haunts me even today The wee hours of April 16 2014 ruined our lives forever when the Wadala railway police came to our house in search of Agnelo My wife Elga who was then 50 was so terrified that she spoke to me in Tamil and asked if she should phone Agnelo and caution him about the police arrival at that time Agnelo was staying with his grandparents at Dharavi but I stopped her saying if Agnelo has committed any crime then he should pay for it I handed my son over to the police They assured me nothing will happen to him but they tortured and killed himrdquo Valdaris claimsValdaris worked at Mumbai Port Trust and is now retired He stays in the same house with his mother Grace 82 who like her husband Xavier has been hoping for justice but even she is losing hope says Valdaris ldquoLike my father even my mother is sinking We both are heart patients and I stay on the mezzanine floor the same room which was once my son Agnelorsquos Every night I see him and he seeks justicerdquo he saysldquoPunish them for taking away my son without even giving him the right to defend He was tortured and beaten up mercilessly by those who are protectors of law in police custody At least now the government and judiciary should stop custodial torture and extrajudicial killingsrdquo says an emotional Valdaris asking that this should be considered his last plea and appealIt has been more than ten days since the statement was made by the public prosecutor to the high court in the Akshay Shinde shootout case and till date appropriate action against the accused has not been taken says advocate KatarnawareSince no action has been taken by the state with respect to registration of FIR against the policemen a local social worker from Ulwe name withheld wrote to Mumbra police on January 23 requesting them to take appropriate steps at the earliestAs Shindersquos parents have to stay away from their house in Badlapur and his grandmother too has to face the neighboursrsquo hostility the social worker asked the police to expedite the matter but no cognisance has been taken so far by the police claims KatarnawareldquoAkshayrsquos parents are under duress and fear for their safety so they have moved out of their home in Badlapur and are forced to stay on the pavements of bus stops and railway stationsrdquo said Katarnaware who is fighting the case for the family pro bonoAdvocate Amit says that in the case of extrajudicial killings ldquoUsually the police get sufficient time to tamper with evidence and they fabricate the entire incident and narrative However in the Akshay Shinde case as we moved the Bombay High Court the day after the shooting itself and the HC intervened the very next day they the police could not do much and the magisterial inquiry report says it allrdquoHe adds that an intervention application is planned to be filed before the court to take the case to a logical conclusionThe Badlapur sexual abuse case underscores critical concerns regarding extrajudicial killings police accountability and compensation for victimsrsquo families says Mohini Priya Advocate on Record Supreme Court of India ldquoThe custodial death of Akshay Shinde despite the absence of forensic evidence against him is a grave violation of fundamental rights under Articles 14 21 and 22 of the Constitution Judicial precedents establish clear guidelines against police encounters emphasising independent investigations to ensure fairness However the failure to act against officers involved in custodial deaths fosters a culture of impunity NHRC guidelines mandate independent probes yet noncompliance remains rampant making the state vicariously liable Additionally the DK Basu v State of West Bengal guidelines which lay down strict procedures for arrests and custodial safeguards continue to be flouted exacerbating police excessesrdquo she notesFurther compensation for victimsrsquo families must follow a structured framework where age and earning capacity determine financial relief The Supreme Court affirms that custodial deaths warrant public law remedies yet a uniform standard for assessing compensation is absent NCRB data consistently highlights the alarming rise in custodial deaths reinforcing the urgency of police accountability reforms explains advocate PriyaAddressing this issue requires a multipronged approach Law enforcement must be mandated to collect forensic evidence before making arrests and custodial deaths should be investigated by independent agencies like the CBI or SIT with magistrates proactively conducting inquiries under Section 1761A CrPC A structured compensation framework modelled on Motor Accident Claims Tribunals should be established to ensure timely relief facilitated by State Legal Services Authorities Police reforms must include human rights training fasttrack disciplinary mechanisms and accountability boards to curb misuse of power Strict oversight through state and districtlevel committees mandatory body cameras and continuous CCTV monitoring in custody settings will enhance transparency Legislative changes should impose severe penalties on officers involved in extrajudicial killings with amendments to the Indian Evidence Act shifting the burden of proof onto law enforcement in custodial death cases says PriyaPublic awareness and advocacy are crucial NGOs and civil society must educate victimsrsquo families on their legal rights and facilitate judicial interventions through PILs The media must play an active role in exposing police excesses and ensuring accountability The DK Basu guidelines must be enforced with stronger mechanisms to hold officers accountable for violations The Badlapur case is a stark reminder that systemic reforms are urgently needed Strengthening legal accountability for law enforcement instituting a structured compensation model and reinforcing independent oversight will be key to restoring public trust in the justice system The judiciary legislature and executive must work collectively to prevent such recurring abuses advocate Mohini Priya concludesExtrajudicial killings are not uncommon in India says Dr Tanaya Kamlakar who is Assistant Professor Law at the Maharashtra National Law University Mumbai as well as Director of the Centre for Research in Criminal Justice ldquoThe surge in extrajudicial killings as stated by NHRC relying on the NCRB data indicates at least 17146 deaths till 2020 figures furnished by state governments The common grounds given by police include the accused trying to evade arrest or that the accused was a historysheeterrdquoCases which are highlighted by public uproar garner a lot of media attention she says and the arrest and killing of such criminals in police encounters bypassing the established norms of law creates an illusion of instant delivery of justice This quenches the curiosity of the public in terms of criminal retribution and makes the policemen look like heroesrdquoHowever she points out in the recent Badlapur case the Forensic Science Laboratory found that there was no residue of the deceasedrsquos fingerprint on the alleged weapon used in the firing ldquoThe police had contended that accused had snatched the weapon pistol from the constable and fired at the officers but the question still remainsmdashhow can a person who is handcuffed snatch the gun from the policerdquo she saysDr Kamlakar adds that every accused deserves a chance to be represented in the court of lawThe accountability of police officers in such actions is the need of the hour The unfair treatment to the accused and his family cannot be dealt with by mere compensation It requires sensitisation of police officers active participation of the judiciary and most importantly assistance of the public by eradicating their own prejudices about the persons committing offences she saysOver the years data from the National Human Rights Commission NHRC and the National Crime Records Bureau NCRB have consistently highlighted a surge in deaths occurring in police custody However presenting a comprehensive figure on police encounters in India remains challenging due to discrepancies in government data For instance while the NCRB reported 75 custodial deaths nationwide in 2022 data shared in the Rajya Sabha indicated a significantly higher numbermdash164 deaths for the same year The NCRB often categorises these deaths under headings such as suicide illness or natural causes obscuring the true scale of the issue says Valay Singh Lead India Justice Report New DelhildquoAccording to data provided in the Lok Sabha between 2016 and 2022 Maharashtra reported 34 deaths in police encounters with 10 cases still pending Despite these alarming numbers and prolonged delays no case registrations or convictions have taken place over the years according to information shared in the Lok Sabha by the Home Minister It was only last year that the state witnessed its firstever conviction of a police officer in a fake encounter case dating back to 2006 During these years 20162022 the NHRC has recommended compensation totalling R7165 crore in 107 police encounter cases In 2022 the Maharashtra State Human Rights Commission MHRC registered 1561 cases against the policemdashthe highest among all categories of cases received by the commissionrdquo says SinghVenkatesh Nayak Director of Commonwealth Human Rights Initiative CHRI New Delhi said ldquoThe Bombay High Courtrsquos direction to file an FIR against the police personnel in whose custody the deceased individual was found last is the bare minimum that must be done to move the wheels of justice and investigate the circumstances in which the death occurred This is in line with the directions of the Supreme Court of India in the 2014 PUCL v State of Maharashtra case where it had ruled that the fundamental right to life guaranteed under Article 21 of the Constitution is available to every person and the state has no authority to violate it even if the individual in question is accused of committing the most heinous of crimesrdquoIn India every individual is presumed innocent until proven guilty in a court of law a principle enshrined in the Constitution and protected under Article 14 which guarantees equality before the law This foundational right ensures that justice is not dictated by public opinion or prejudice but by a process grounded in fairness and due process The trial of Ajmal Kasab despite the horrific nature of his crimes serves as a powerful reminder that even the most grievous offenders are entitled to legal representation and a fair trial This is not just a procedural safeguard but a fundamental aspect of our legal system that upholds the rule of law A fair trial is not a privilege it is a Constitutional imperative ensuring that justice prevails for all irrespective of status or circumstance says advocate PriyaldquoThe powers of the police are intended only for investigating a crime and making the accused available for trial The police cannot act as the judge jury and executioner It is also extremely concerning that India has not yet ratified the UN Convention against Torture UNCAT despite signing it more than a quarter of a century ago Even though the police are prohibited from torturing the accused or suspects or witnesses to crime in their custody custodial violence involving torture rapes and murder occur with sickening frequency year after year This is because of the absence of a comprehensive law to hold police personnel accountable for such actionsrdquo says NayakHe adds ldquoThe Union government has wriggled out of its responsibility to bring in such a law year after year by claiming that the matter is being discussed with the States Parliament has been told frequently that this neverending consultation is a major reason why India has not yet ratified UNCAT This state of affairs cannot be tolerated any longer The impunity for perpetrators of custodial violence is an affront to the rule of law which forms the bedrock of our democracy and makes a mockery of the preambular vision of justice for allrdquoldquoThe problem in India is the requirement of prior sanction for prosecution of public servants under Section 197 of CrPC and now under Section 218 of the Bharatiya Nagarik Suraksha Sanhita 2023 before taking cognisance of an offence by the courts The decision is taken by the department concerned where there is often no application of judicial mind and worse the decision on grant of permission cannot be subject to judicial review This has come to mean that the executive sits over the judiciary because even the Chief Justice of India cannot proceed without the prior sanction This has created a system of impunityrdquo says Suhas Chakma Convenor of the National Campaign Against TortureldquoEven in cases where sanction is given most victims are often caught in judicial delay and hostile ambience associated with prosecution of law enforcement personnel especially if the victims are accused of crimes They are not covered under the victimsrsquo compensation scheme In a nutshell the process becomes another sort of punishment for manyrdquo Chakma addsDr Harish Shetty a known consulting psychiatrist attached to Dr LH Hiranandani Hospital says ldquoShortcuts on the road in life or in transacting the law are harmful to the health of the society and cause grievous emotional pain to families involved Corporal punishment to children and extrajudicial killings affects not only the victim but also the perpetrators I have been principally against students taking the law into their own hands in educational institutions similarly I am against fake encounters of criminals either on the roads or in their judicial confinements Slowly the educators and the men in uniform become violencehappy or triggerhappy and shoot innocents too Both in educational institutions and in public space one needs to look for redressal to the institutions of justicerdquoldquoThose cops who believe in knocking off criminals cause injury to their own hearts and souls They suffer from sleep issues addiction and inability to love their ownkith and kin They become hard rude and may not be able to experience normal feelings Some suffer from longstanding depressionrdquo says Dr ShettyAdvocate Rohini Salian former Maharashtra chief public prosecutor says ldquoThe lawenforcing machinery should be unbiased and should not be a puppet in the hands of influential people or those in power Justice should be done and should be seen to be done a basic principle of law which needs to be adhered by the prosecutors who should be given free hand and required assistance to ensure that due process of law is followed so that fair trial gets conducted and justice is done to the aggrieved partyrdquoWhen asked about the tagging of a suspect as ldquoguiltyrdquo even before a fair trial is conducted she says ldquoIt is high time that the mindset of those in powermdashpoliticians police judiciary and public at large change or else impulsive reactions to disinformation can be disastrous as we saw in the Badlapur case where public pressure superseded the due process of lawrdquoThe belt treatmentHow do the police procure a ldquoflour mill beltrdquo or a ldquosatyashodhak beltrdquoServing police officials say that this belt is not part of any official procurement list of items for instance baton lathi shields weapons etc for which usually tenders are floated and purchase doneSpeaking to midday on condition of anonymity a police officer says the ldquosatyashodhakrdquo or ldquotruthseekingrdquo belt is one of the oldest methods of extracting information from suspects and the detection branches of every police station and even crime branch units have such a beltThe size of the belt is usually 35 feet to 4 feet in length and 6 inches in breadth and it has a wooden handle to hold one end of itAs for how it is procured the officer explains that flour mills replace their old belts during the process of overhauling their machines and the discarded belt is taken by the police who get a wooden handle attached with tight screws at one end for a good gripAt times even rubber sheets of similar size are used instead of flour mill belts adds another detection officerSeeking a solutionThe SC in a 2006 order said custodial violence must be tackled with both remedial and preventive measures Representational piciStockWhile mechanisms for addressing cases of encounters exist they have proven futile in ensuring state or police accountability Technology can come to the aid of justice in the form of bodycams There can also be a separate mechanism under NHRC for dealing with cases of custodial violence Shielding stateappointed police officers under the garb of selfdefence while the accused tries to escape needs to be backed by evidence as mentioned under the guidelines issued by the Supreme Court in 2014 PUCL v State of MaharashtraThe Supreme Court of India had suggested a sixpoint method to prevent custodial deathsOn February 3 2006 a threejudge Bench consisting of Chief Justice of India YK Sabharwal Justice BN Srikrishna and Justice RV Raveendran while passing orders in criminal writ petition 237 of 1998 Sube Singh vs State of Haryana and others had cited six points to prevent such occurrence of custodial tortureCustodial violence requires to be tackled from two ends that is by taking measures that are remedial and preventive Award of compensation is one of the remedial measures after the event Effort should be made to remove the very causes which lead to custodial violence so as to prevent such occurrences The following steps if taken may prove to be effective preventive measuresrarr Police training should be reoriented to bring in a change in the mindset and attitude of the police personnel in regard to investigations so that they will recognise and respect human rights and adopt thorough and scientific investigation methodsrarr The functioning of lower level police officers should be continuously monitored and supervised by their superiors to prevent custodial violence and adherence to lawful standard methods of investigationrarr Compliance with the eleven requirements enumerated in DK Basu should be ensured in all cases of arrest and detentionrarr Simple and foolproof procedures should be introduced for prompt registration of first information reports relating to all crimesrarr Computerisation videorecording and modern methods of records maintenance should be introduced to avoid manipulations insertions substitutions and antedating in regard to FIRs mahazars inquest proceedings postmortem reports and statements of witnesses etc and to bring in transparency in actionrarr An independent investigating agency preferably the respective Human Rights Commissions or CBI may be entrusted with adequate power to investigate complaints of custodial violence against Police personnel and take stern and speedy action followed by prosecution wherever necessaryThe endeavour should be to achieve a balanced level of functioning where police respect human rights adhere to law and take confidencebuilding measures and at the same time firmly deal with organised crime terrorism whitecollar crime deteriorating law and order situation etc