Analysis
Let’s stop using the terms “custody death” or “custody murder.” Ajith Kumar’s case is a clear-cut murder, and it deserves to be recognised as such without any qualifiers!
First of all, I wonder how the death of the Victim Ajith Kumar would be articulated under the term Custody Death/murder. Are we diluting the Culpable homicide amounting to Murder into Culpable homicide not amounting to murder?
Before getting into the law, let us see the facts of Ajith Kumar’s case as per the Hon’ble Madurai Branch of Madras Division bench arguments and discussions:
- On June 27, Nikita and her mother from Alampatti, Madurai, visited a temple. Nikita asked Ajith for help with a wheelchair and for parking their car. After their darshan, they reported 9.5 sovereigns of gold jewellery missing from their vehicle and accusing Ajith.
- Although the alleged theft occurred in the morning, the women waited until late evening to report it at the Thiruppuvanam police station. The inspector carried out a inquiry with Ajith and another temple employee before escalating the matter to senior authorities, but the Inspector did not said to have register FIR or detain them. The case was then handed over to a special investigative team led by Manamadurai DSP Shanmugasundaram (now suspended). The DSP allegedly ordered his six-member special crime squad, led by head constable Kannan, to recover the valuables.
- The team identified Ajith as the prime suspect and detained him for questioning, along with his brother Vineeth and two others. This part of the sequence is not disputed. To avoid CCTV surveillance, the police allegedly chose not to conduct the interrogation at the Thiruppuvanam police station. The suspects were reportedly taken in a van to hidden spots, including a deserted village tank bed and eerie abandoned buildings. They were reportedly beaten and tortured by the DSP squad, who also searched Ajith’s house. When they didn’t find the “stolen” jewellery, their violence escalated, and Ajith faced renewed brutality. On June 28, Ajith was taken to a cow shed behind a temple and beaten with pipes and rods, resulting in fainting and seizures.
- Unconscious Ajith was taken in an auto rickshaw to a private hospital, which refused to admit him. He was then taken to Thiruppuvanam Government Hospital, where he was declared brought dead. The body was sent to Madurai Rajaji Hospital for a post-mortem. The Thiruppuvanam police registered an FIR later that night based on head constable Kannan’s complaint, stating that Ajith died while attempting to escape police custody.
Continuation of analysis
This is the fact. Now, coming to the law. Kindly do not forget that the purpose of this article is to engage in seeing that the fact described above meticulously does not come within the purview of ‘custody death or custody murder’ but under the offence of ‘murder’.
Right! Let us extract and read sections 101: Exception 3 and section 105 from BNS 2023 and Form No. 33: Charges (5) of BNSS 2023 for research purposes.
Sections 100, 101 (exception 3) and 105 come under chapter VI of BNS.,2023 ‘Of offences affecting the human body’, hence it goes without saying that these sections deal with culpable homicide and of course, including not amounting to murder. The extracts are provided below.:
Chapter VI: Of offences affecting the human body – Of offences affecting life:
Culpable homicide: (kindly note that you cannot find the word ‘murder’ in this section but only explaining the degree of homicide and the culpability of the same)
Section 100. Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Murder: (this section explains the degree of culpable homicide and the highest of it is ‘murder’)
Section 101. Except in the cases hereinafter excepted, culpable homicide is murder –
(a) if the act by which the death is caused is done with the intention of causing death; or
(b) if the act by which the death is caused is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused; or
(c) if the act by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death; or
(d) if the person committing the act by which the death is caused, knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
“The aforesaid sections and clauses explain the first degree of culpable homicide, which amounts to ‘murder’.
……
Now, there are exceptions portrayed in the section itself and one of them is Exception 3, which reads as follows:
Exception 3.—Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
The punishment for exception 3 falls under section 105 BNS, as extracted below:
“105. Punishment for culpable homicide not amounting to murder.—Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which shall not be less than five years but which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years and with fine, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death”.
When does a person come under custody?
It is important to note that if a person is to come under custody (either under judicial or police), he must have been detained or arrested by the police (in the case at hand). The guidelines for making an arrest are outlined below.:
BNSS., 2023: – Chapter V: Arrest of persons: Section 58:
No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 187, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’s Court, whether having jurisdiction or not.
Now, what is meant by custody?
The Hon’ble Supreme Court in its unequivocal voice has held that “a custody from being judicial may turn into police through an order passed by the learned Magistrate. Detention may at best be a facet of custody. However, they are not synonymous with each other. When detention is authorised, it would become custody [Senthil Balaji vs The State Represented by Deputy Director and others – Criminal Appeal Nos. 2284-2285 Of 2023 – 07-08-2023 – 2023 INSC 677 [para. 57]].
It is clear that a detention or arrest of a person by a police officer is considered to be a ‘custody’ only when it is authorised by a court or magistrate. Until such authorisation, IT IS NOT CUSTODY. If the court/magistrate did not authorise the same, it is called as Illegal Detention/arrest. At this time, we must not forget that using the terms “custody death or custody murder” may also implicate “judicial custody death” or “judicial custody murder,” which has obviously been discussed in RE: Inhuman Conditions In 1382 prisons – (2017) 10 SCC 658 [custody death includes judicial custody deaths].
So, if a detention is authorised as legal by a Magistrate, only then it becomes custody; till then, there is or was no custody of an accused by the police officer. If an accused is not authorised by the court, it has another disqualification that it is called ‘illegal detention/custody’. In other words, if there is no court order of converting a detention into custody as held by the Hon’ble Supreme Court, the accused was held only under Illegal detention after being arrested by the police. So, in every custody, there is an arrest/detention and not vice versa.
The word ‘offender’ under exception 3 in section 300 IPC/section 101 BNS
At this moment, we must take time to appreciate the intelligence of master draftsman Lord Thomas Babington Macaulay by inserting the word ‘offender’ under exception 3 in section 300 IPC, now section 101 BNS. If the term ‘offender’ was not inserted in the exception.3, then there is no embargo for the defence to request the courts to frame the charge under section 304 IPC/S.105 BNS, which is ‘culpable homicide not amounting to murder’, against the individuals/culprits who have killed Ajith.
BNSS., 2023: Schedule II: Form no. 33: Charges (See sections 234, 235 and 236):
“(5) On section 105.—That you, on or about the ……………………………………..day of……………………………………, at…………………………………, committed culpable homicide not amounting to murder, causing the death of…………………… , and thereby committed an offence punishable under section 105 of the Bharatiya Nyaya Sanhita, 2023, and within the cognizance of this Court”.
Conclusion
In conclusion, I urge the legal community to refrain from labelling this incident as a custody death or a custody murder, as doing so, we are allowing the culprits to invoke the defence under “Exception 3 of 101 BNS”. Therefore, this incident is a ‘murder’.
I recollect the teaching of my senior (before 15 years) that the court should avoid directly framing the charge under section 304 part1/partII of IPC; very particularly in cases of custody death (original custody death). If the accused is ultimately found to be an ‘offender’ under section 105 BNS after the conclusion of the trial, the court shall then sentence him for ‘culpable homicide not amounting to murder’. Till then, it is a MURDER, and they are MURDERERS.
Thank you.
Ramprakash Rajagopal,
Advocate, Tamil Nadu.
