Brutal torture in custody clubbed with inaction: Colonial system of impunity

Kirity Roy, Secretary, Banglar Manabadhikar Suraksha Mancha (MASUM) writes to the Chairman, National Human Rights Commission:

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I want to draw your attention towards a case of criminal trespass, illegal apprehension, brutal and unethical custodial torture upon the innocent Muslim youth of Purba Sahebganj village under the Dinhata-II Block and Sahebganj Police Station in the district of Cooch Behar, West Bengal. Mr. Johirul Islam, a 30 years young man isthe victim of this incident. He was illegally apprehended from his house by BSF and brutally tortured in BSF custody and even attempted to kill by the Border Security Force personnel including the Company Commander Mr. Bijay Kumar attached with Purba Sahebganj Border Out Post, Battalion number 129. Torture upon the victim was so ghastly that till now he cannot walk properly due to severe pain in lower back portion of his body.
Mr. Ahammad Ali, father of the victim lodged one written complaint to the Sahebganj Police Station but the concerned police did not register any case after knowing that a cognizable offence was made against the victim. This is a violation of Section 154 of the Code of Criminal Procedure and Apex Court guidelines in the case of LalitaKumari vs. State of Uttar Pradesh [WP (Crl.) 68 of 2008] where Supreme Court clearly laid down that immediate registration of First Information Report is mandatory under section 154 of the Code of Criminal Procedure if the information discloses commission of a cognizable offence and provide the copy of the FIR to the complainant free of cost. He also sent his complaint to the Superintendent of Police, Cooch Behar but till time no action has been taken by the concerned district police administration.
This incident violates Article 14 and 21 of the Constitution of India. The perpetrators are punishable under the following:
a. Section 441 of Indian Penal Code (IPC) – Criminal Trespass
b. Section 323 IPC – Voluntarily causing hurt
c. Section 325 of IPC – Voluntarily causing grievous hurt.
d. Section 326 of IPC – Voluntarily causing grievous hurt by dangerous weapons
e. Section 307 IPC – Attempt to murder
During the time of apprehension of Johirul from his house by BSF personnel, no memorandum was issued by the BSF which is unethical.
The incident violates Article 3 (Right to life, liberty and security); Article 5 (Freedom from torture, cruel inhuman or degrading treatment or punishment); Article 7 (Equality before law and equal protection of laws) and Article 8 (Right to effective remedy) of the Universal Declaration of Human Rights (UDHR) and Article 6 (Right to life) and Article 7 (Right not to be tortured) of the International Covenant on Civil and Political Rights (ICCPR) and in both two international instruments India is party to and signed the documents.
During the time of release from the Dinhata Sub Divisional Hospital, the on duty doctor advised him to receive treatment outside of the hospital. This is an unethical job and violation of the guidelines of Indian Medical Association (IMA).
The family of Mr. Johirul Islam is very poor. He is the only earning member of the family and completely dependent on his work. As a result of BSF torture, now he is unable to walk. Now from what source he will earn from his family members. While the Government of India has been considering implementing the United Nations Sustainable Development Goals within 2030 and where the eighth goal is to promote sustained inclusive and sustainable economic growth, full and productive employment and decent work for all, but the agent of the government (here BSF) by illegal apprehension and custodial brutal torture upon the victim, snatched his right to decent work. The incident also violated Article 6 (Right to work) and Article 9 (Right to social security) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The impunity and the omission in duty by the concerned department after lodging the complaint by the victim before the Officer in Charge, Sahebganj Police Station and Superintendent of Police, Cooch Behar district also violates Goal number 16 of the UN SDG for providing access to justice for all.
The incident and subsequent impunity legitimize our long standing demand for immediate ratification of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (UNCAT).
The incident reflects the entrenched impunity in the criminal justice system and systemic attack on religious minorities, especially Muslims by public officials. Therefore I seek your urgent intervention in the case by fulfilling the following demands:
· An independent and non-partisan investigation of the incident by the Investigating wing of the Commission.
· BSF should be posted in the actual borders not inside the villages.
· Proceedings should be initiated against the perpetrators of the BSF and the police and strict punishment should be given if found guilty.
· Adequate compensation for the victims from the pocket of the perpetrator BSF personnel.
· Directions to the Sahebganj Police Station to register one case based on the written complaint of the victim and issue the FIR copy to the informant and start impartial investigation in respect.
· Security and safety of the victims and their family members must be ensured.