22 November 2018
National Human Rights Commission
Manav Adhikar Bhawan
Block-C, G.P.O Complex, INA
Reference: NHRC case no. 1138/25/15/2013-PF
Commission's direction through e-mail dated 27.09.2018
Original complaint dated 09.09.2013
Protest letter against the direction of the Commission
In connection of the above referred case, the Commission sent one email communication to the complainant disclosing that the Commission closed the case.
The complainant is deeply aggrieved with the decision of the Commission and therefore, I beg to submit the present open letter of protest against the decision of the Commission.
At first in the direction issued by the Commission through the email on 27.09.2018, it is revealed that the Commission gives much reliance on the reports of the Superintendent of the Police, North 24 Parganas. But the Superintendent of Police did not supply the post mortem report or inquest report of the victim even he did not submit the final report of the investigation to the Commission and as for result I also have not received the same. The report of the SP, North 24 Parganas is nothing but a mere table work. Without giving FIR copy, post mortem examination report of the victim and inquest report how can the Commission close this case?
Secondly, most obnoxious view of the Commission is that the case is not a custodial death. In the complaint letter of the victim's wife to the SDPO, Basirhat, she clearly stated, "on 26.07.2013 my husband was captivated from the road by the BSF personnel of Amudia camp and taken him by jeep to the Amudia camp at about 3 am". She also told that her husband was killed in the custody of BSF personnel at Amudia BSF camp and later hanged his body with a bamboo pole at a place which is about two kilometers away from the victim's residence. One copy of the said complaint dated 12.08.2013 is annexed herewith for your kind consideration. It should be mentioned that in the case of custodial death, the 'Last Seen Theory' is applicable and here the wife of the deceased Ms. Rehana Gazi saw her husband last when he was captivated from the road by the BSF personnel of Amudia camp. From this, it is revealed that the allegation which was complained of against the BSF is of course a custodial death of the victim. I do not know why your office denies it as custodial death when it is open insert to all that the victim was tortured and killed during the time of situating in the custody of BSF.
Thirdly, the authorities of the BSF, police and the Executive Magistrate are under the Home department; central or state, and therefore the inquiry by the executive Magistrate in this respect is not maintainable on the ground of natural justice. Besides this section 176 (1A) of Code of Criminal Procedure Code enacts that in case of death or disappearance or rape of the victim in any custody of the police or any other custody, an inquiry shall be held by the Judicial Magistrate or Metropolitan Magistrate. But in this case no inquiry by any Judicial Magistrate has been done in spite of complaining that the victim was killed in the custody of the BSF personnel at Amudia BSF camp.
Fourthly, the Commission had said that the matter is sub judice and the victim's wife is at liberty to approach the appropriate forum of law and the matter required no intervention of the Commission. But inaction and not follow the rules of justice by the police and BSF authority is a continuing routine and no one is bothered and still no one is ready to do anything. So then what? Where do the Common people and the victims go? Isn't it the responsibility of NHRC to protect the rights of the victims?
The Minnesota Protocol on the Investigation of Potentially Unlawful Death presents a set of operational and tactical process, deriving from the overall strategy. These processes should seek to establish significant facts, preserve relevant material and lead to the identification of all the parties involved. Activities should be planned and appropriate resources allocated in order to manage the following:
· The collection, analysis and management of evidence, data and materials,
· The forensic examination of important physical locations, including death and crime scene,
· Family liaison,
· The development of a victim profile,
· Finding, interviewing and protecting witnesses
· International technical assistance
· Financial issues and
· The chronology of events
The enquiry by the local executive magistrate could not meet the above stated guiding points in case of this custodial death.
More so, without giving me any copy of the enquiry report how the Commission can closed this case? This presents the autocratic nature of the Commission. Being the complainant it is my right to meet up with the report submitted by the respective authority.
The Commission must not lose sight of the fact that death in BSF custody is perhaps one of the worst kind of crimes in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizen recognized by the Indian Constitution and is an affront to human dignity.
It is seen that being supreme authority of giving justice to the human beings, NHRC now acts as acted in this case, as a toy in the hands of the police authority. More reliance on the police report without judging any fact and law it, derogates its impartial characteristic where a fearless attitude should be maintained by your office. It is unexpected and unwanted that you clearly held the view that it was not a case of custodial death and by your comment you strengthen the hands of the perpetrators BSF personnel and thereby denied rights of the justice craving victim.
It is a matter of right to life. One life is more precious and valuable in the eyes of the human rights protector.
Therefore, I hope that the Commission would reopen the present case in view of the submission of my above stated comments in the present letter and would pass an appropriate direction for proper disposal of the present case.
Banglar Manabadhikar Suraksha Mancha
National Convenor (PACTI)
Programme Against Custodial Torture & Impunity
40A, Barabagan Lane (4th Floor)
Tele-Fax - +91-33-26220843
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