By Jalaj Tokas
Published On: October 20, 2021 at 10:42 IST
Crimes are like the psychotic syndromes and the patients suffering from this must be healed by medico-legal recipes inside prisons where social beings are kindled and not killed.
The basic aim of all modern welfare States in the world is to provide a safe and secure environment to its citizens, so that they can flourish and contribute towards the betterment of the society and its future at large. But the ever-increasing graph of crime is a blatant proof that the Criminal Justice system has failed miserably to fulfill this cherished dream.
The Indian Constitution has enshrined the concept of fundamental rights to guarantee certain basic rights and liberties to its citizens. Human rights, as laid down by the Constitution, are those fundamental rights that are inherent and inalienable for the survival of individuals in the society. In the new millennium, by virtue of international declaration, it is the duty and the responsibility of the welfare state to protect these rights of individuals.
Several organizations are making a praiseworthy effort by assuring that these rights reach and are also exercised by the common man. Such institutes treat life as a rope that swings us through with a hope that today is better than yesterday, and tomorrow will be better than today. Many organizations and activists have contributed tremendously in the sphere of legally educating people and have thus brought some grave matters to light.
The incidence of custodial violence, and custody death, however, continues unabated. This article explains the proliferating social evil of custodial death. The ultimate aim of the article is to explain those promising ways by which the custodial deaths can be stamped out from society.
What are Custodial Deaths?
The word ‘custody’ implies guardianship and protective care. Custodial death is defined as the death of a person due to any form of torture or cruel, inhuman or degrading treatment by the police officers, whether it occurs during investigation, interrogation or otherwise.
Even when applied to indicate arrest or incarceration, it does not carry any sinister symptoms of violence during custody. No civilized law postulates custodial cruelty – an inhuman trait that springs out of a perverse desire to cause suffering when there is no possibility of any retaliation; a senseless exhibition of superiority and physical power over the one who is overpowered or a collective wrath of hypocritical thinking.
It is one of the worst crimes in the 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 citizens and is an affront to human dignity.
Difference between a Prisoner and a Person in Custody
A prisoner as we all know is a person who is convicted of an offence by the court of law. The conviction is for a particular term, which he has to serve while in prison.
Unlike a prisoner, a person in custody is the suspect of a crime, who has been arrested and is being kept in lockup, until he can be tried in a court of law.
The distinction is drawn here to understand the magnitude that if one is subjected to death in the custody due to vilest torture; even before the verdict of the court of law, then it will amount to be a gross injustice and violation of human rights.
History and Legislation pertaining to Custodial Deaths in India
The concept of custodial death is not new for Indian society. Since the colonial era, people have been dying in police custody during investigation. India has time and again witnessed the basic fundamental rights of the prisoners being shattered and the use of coercion and torture to take the favorable statement.
- The Indian Penal Code, 1860.
According to Section 302 of Indian Penal Code, a police officer committing the murder of a suspect in custody shall be punished for the offence of murder.
A police officer can be punished for custodial death under Section 304 of Indian Penal Code for culpable homicide not amounting to murder.
If the victim has committed suicide and it is proved that the police officer has abetted the commission of such suicide, then the police officer will be liable for punishment under Section 306 of Indian Penal Code.
- The Code of Criminal Procedure, 1973.
Section 176(1) of Code of Criminal Procedure, 1973 empowers a magistrate to hold an inquiry into the cause of death in addition to the investigation held by a police officer.
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, in addition to the inquiry or investigation held by the police.
The magistrate shall, within 24 hours of the death of a person, hold an inquiry or investigation under section 176(1A) of Code of Criminal Procedure, 1973, and forward the body for examination to the nearest civil surgeon.
- Guidelines Issued by NHRC
The complaints of deaths in police lock-ups have been made in large number before the National Human Right Commission, and it has been high on its agenda as it highlights the protection of civil liberty.[i]
- The Indian Evidence Act, 1872.
The Indian Evidence Act embodies certain provisions with regard to police custody.
The confession caused by inducement, threat or promise is considered to be irrelevant in criminal proceedings.
Neither can a confession made to a police officer, shall be proved against an accused. Nor a confession made by an accused while in the custody of the police, be proved against him.
Where does the problem lie?
Sentencing of a convict basically embarks the culmination of the judicial process which begins with the detection, enforcement of the law, prosecution and adjudication. The reasoning of sentencing lies in the fact that it becomes the face of Justice and a future deterrent for the prospective offender of law.
Undoubtedly, the Criminal Courts have championed in the art of fact finding and law applying but the lacuna lies when it comes to the process of sentencing. The success in the former part is mainly due to the unemotional and objective approach of the courts. However, failure in the latter can be attributed to the emotional and subjective reaction of the public towards the convict. This situation is further aggravated due to the lack of a well-defined sentencing policy.
Today the society has nearly succumbed to the syndrome of lawless tensions, psychic penury and miseries of conflict, at different levels simultaneously. The legal mutiny far from salvaging man is gnawing at him from within. Incarceration barbarity has been validated by the popular retributive- deterrent philosophy, which is the current sentencing coin in many criminal jurisdictions.
What do the Courts have to say?
The Courts have highlighted time and again that the Constitution is a great landmark of human liberty, and it should serve its purpose of ensuring human dignity, human survival and human development. It highlights that the State must strive to give a new vision and peaceful future to its people where they can cooperate, co-ordinate and co-exist with each other so that full protection of Article 21 of the Constitution is ensured and realized.
Article 21 strictly lays down that, “No person shall be deprived of his life or personal liberty except according to procedure established by law.”
But this procedure not only refers to the enacted law but also extends to the principle of natural justice.
Article 21 is not a mere platitude or dead letter lying dormant, decomposed, dissipated and inert. It is rather a pulsating reality throbbing with life and spirit of liberty, and it must be made to reach out to every individual within the country. It is the duty and obligation of the State to enforce law and order and to maintain public order so that the fruits of democracy can be enjoyed by all sections of the society irrespective of their religion, caste, creed, color, region and language.
- Third-Degree Method is unconstitutional – Kishore Singh Vs State of Rajasthan[ii]
One of the petitioners, in a telegram to one of the Judges of this Court complained of insufferable, illegal solitary confinement. He also complained that he was kept in iron fetters along with the other two petitioners. The Hon’ble Supreme Court of India in this case held that the third-degree method used by the police to be in violation of Article 21 of the Constitution. The Court has also directed the government to educate the police to inculcate respect for the human person. It is rather very unfortunate that even after 39 years of this principal judgment, the number of deaths did not reduce, instead, it paced up.
- Compensation by State – Phoolwati Vs NCT of Delhi[iii]
In a writ petition whereby the petitioner Phoolwati claims compensation on account of custodial death of her husband Jaswant Singh.
In this case, the Court held that the petitioner, wife of the deceased, can claim compensation by invoking Article 226, making the State vicariously liable for acts of police personnel. Hence, the Court directed the State Government to pay compensation to the petitioner.
- Fair investigation by the CBI in matters of custodial deaths – Moheela Moran Vs State of Assam[iv]
The Court in this case highlighted that there is an increasing regularity in referring cases of custody death to the CBI, since it is not seen as realistic to expect that the police will carry out an unbiased investigation in a matter where the police are themselves in the dock. It was seen in this case that there was no proper investigation in this matter as the police personnel are involved in the matter to investigate the killing of the son of the petitioner, in police custody
The prosecution of errant officers is not unknown in law. Courts too may suggest prosecution where it is not already underway or to leave it open for the state authorities to proceed against the erring officers both departmentally and criminally. In, and in other cases of custodial deaths, the court gave the verdict upholding the applicability of the doctrine of vicarious liability.
The regularity with which the cases of custodial violence and death have reached the courts has been one of the reasons for the increasing credulity, and lessening disbelief, when complaints are made of police violence. However, the doctrine of Res Ipsa Loquitur has been imported into this arena.
- Extent of State’s responsibility – State of Andhra Pradesh Vs Challa Ramkrishna Reddy[v]
Some persons entered the premises of Sub-jail and hurled bombs as a result of which Challa Chinnappa Reddy sustained grievous injuries and died subsequently. His son Challa Ramakrishna Reddy, however, escaped with some injuries. Challa Ramakrishna Reddy and his four other brothers along with his mother filed a suit against the State of Andhra Pradesh claiming a sum of Rs. 10 lacs as damages on account of the negligence of the defendant which had resulted in the death of Challa Chinnappa Reddy.
The remedy of compensation as a palliative or as it is more frequently being characterized, as an interim measure is now firmly rooted in the law. Any doubts that might have persisted about the state’s responsibility for the safety of persons in its custody have now been laid at rest by the decision of the Supreme Court in this case
- Vicarious liability of State – Challa Ram Konda Reddy Vs State of Andhra Pradesh,[vi].
This affirms the decision of the Andhra Pradesh High Court in this case that an early decision that went beyond situations of custodial violence perpetrated by instrumentalities of the state, to the responsibility of the state when persons are held in its custody, even where injury or death is caused by third persons.
The remedy of compensation has been extended to these situations and it has begun to be used in a range of other cases of death in custody where the state or its instrumentalities may not have been directly the cause of the harm caused. Excessive, or unwarranted, use of force by the police constitutes a ground for seeking relief – both compensatory and asking for investigation and prosecution – from the court.
The National Crime Records Bureau (NCRB), in its reports from 2005 to 2018, revealed that with respect to the death of 500 persons in remand, 281 cases were registered, 54 policemen were charge-sheeted, but not a single policeman was convicted during that period.
And among the 700 deaths of persons before remand, 312 cases were registered, 132 persons were charge-sheeted and merely 7 persons were convicted. The deaths before remand are during the first 24 hours after the arrest before the suspect is produced before the magistrate.
In the seven months up to July 2020, the National Human Rights Commission, India (NHRC) reported 914 deaths in custody, 53 of these in police custody. As per their data, 714 people were reported to have died in police custody in cases registered between 2013-14 and 2017-18.
A total of 348 people have died in police custody and 5,221 in judicial custody in the country in the last three years, Rajya Sabha was informed in the Parliament Monsoon Session.[vii]
The Delhi High Court transferred investigation into the alleged murder of Tihar inmate Ankit Gujjar to the CBI, saying he lost his life to custodial violence.[viii] The Court observed that the nature injuries sustained by inmate Ankit Gujjar who died in Tihar jail clearly show that it was a case of custodial violence.
In another case, Rizwan Asad Pandit was picked up from his house for questioning. His eventual death in police custody had set in motion a chain of events, beginning from outrage among people and ending in an inquiry now being undertaken by the Jammu and Kashmir Police. The imagined trauma of a school teacher suffering in a camp of the state police’s Special Operations Group (SOG) had stirred civil society once again.[ix]
The most prominent case in recent times was the alleged beating by the police personnel resulting in the deaths of J Benniks and his father RP Jeyaraj on 20 June and 23 June, respectively, has evoked strong criticism from political parties as well as civil society members who said it was akin to the George Floyd incident in the US.[x]
It also triggered demands for police reforms in the country and prompted the state government to recommend a probe by the CBI. According to laid down procedure, the CBI on Tuesday evening re-registered the case filed at Kovilpatti police station related to the deaths under Indian Penal Code, section of custodial death with suspected offences to be illegal detention, murder and destruction of evidence.
The Way Forward
In order to eradicate the ‘custodial death’- a social evil from society, it is pivotal that people must raise their voice collectively against such atrocities. We the people, media, legislature and judiciary must unite and make sure that we are relying upon acknowledging that the police departments are the savior, and not a slayer.
- Implementation of 273rd Report of the Law Commission of India’s 273rd Report
The report recommends that those accused of committing custodial torture – be it policemen, military and paramilitary personnel – should be criminally prosecuted instead of facing mere administrative action establishing an effective deterrent.
- Vicarious Liability is not enough
Taking into account the intensity of the present problem National Human Right Commission has proposed that in cases of custodial deaths the police officer in-charge must be held responsible and not the state. This refers to the least applicability of the principle of Vicarious Liability of the State in cases of Custodial deaths. But if we were to analyze the gravity of the present problem the Doctrine of Vicarious Liability should be made applicable.
The purpose is to provide the maximum security to those who are the victims in such cases. It is believed that if the liability of such an act is poured on the State the amount of compensation and relief provided shall be exemplary which will be in the interest of the one oppressed.
The Constitution enshrines the Right to Life and Liberty by Article 21 and empowers the State to guarantee these rights. This is sufficient to justify the applicability of the principle of vicarious liability of the State in cases of Custodial deaths where there is covert and overt infringement of the basic rights of life and liberty of an individual.
- Follow the Guidelines highlighted in D.K. Basu Vs State of West Bengal[xi]
The Court issued a list of 11 guidelines in addition to the Constitutional and Statutory Safeguards to be followed in all cases of arrest and detention. The guidelines are as follows:
- The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
- That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by atleast one witness. who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
- A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed.
- The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
- An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of his next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
- The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The “Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
- Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.
- The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
- A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board.
- The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. It should also be made mandatory which would act as a preventive measure against custodial deaths.
- And most importantly, the detainee must undergo a medical examination by a trained physician every 48 hours while in custody by a physician on the panel of approved physicians appointed by the Director of Health Services of the State or Union Territory concerned.
The bench admitted that the welfare of an individual must yield to that of the community but held that the actions of the state must be “right, just and fair”.
This amendment, however, still has not managed to attract enough political will to ensure its enactment. This amendment was tabled before the Raja Sabha, in 2017, as the Indian Evidence (Amendment) Bill but it has not yet been passed by the house.
Almost every other landmark judgment passed by the apex court till date holds significance in its area of relevance. Some precedents set by the Supreme Court have had a considerable impact on rights jurisprudence and have only enriched the basic tenets of democracy and the main holy grail- the Indian Constitution. Similarly, the DK Basu case still holds relevance, not only in the obliging of the guidelines set by it but also in the scenarios presented in the judgment.
Clearly, the judgment has not lost its relevance even after more than two decades. The guidelines, which were made binding, are more or less being violated and non-compliance of the same still does not invite any serious implications. Thus, the vicious circle of infringement of right to life, non-compliance of the guidelines and eventual impunity continues.
It’s time these guidelines take the form of a legislation or get inducted in the Code of Criminal Procedure with meaningful implications for violations if the legislature truly intends to safeguard a person’s right to life.
- A Counsel should be allowed to be present during interrogation
This is to check the possibility of custodial violence by investigating officers. Section 114-B of the Indian Evidence Act, 1872 should be inserted to introduce a rebuttable presumption that injuries sustained by a person in police custody were caused by the police officer. The same was recommended by the 113th Law Commission Report.
The solution to the problem would as such lie in measures to prevent such details from custodial deaths, in fact, such violence itself, and reduce the number of custodial deaths to the extent possible in other circumstances by evolving efficient systems and procedure for prompt and adequate medical aid, where required, and reasonable preventive measures against accidents and suicide. At the same time, it would also be necessary to put such deaths in proper perspective to change the present public perception and establish administration in the matter.
Criminal Justice and more specifically the Criminal Punishment system require huge investment in terms of money, time and energy. Therefore, there must be compensating benefits to justify this exorbitant burden on public exchequer. We had better know what they are and establish whether they are sufficient or not.
We still confide in our authorities because they are trying fervently to doff the dust off their coats. They have the courage to lose the sights of the shore and by carrying this attitude only new oceans can be discovered.
In a civilized society, which is governed by the Rule of Law, custodial crime is one of the worst crimes and poses a serious threat to a tidy civilized society. Torture in custody scorns the basic rights of the citizens and is an aspersion to human dignity.
The law can’t be prejudicial in its approach and can’t deny basic rights like the right to liberty, dignity to someone who is in the police custody. Moreover, the torturous and cruel approach of police in dealing with arrestees required a strong change.
ABOUT THE AUTHOR
Jalaj Tokas is a second Year Law student pursuing B.A.LLB from University School of Law and Legal Studies, GGSIPU, New Delhi. He is a life-long learner is self driven towards his ambitions. He strongly believes that expectations are premeditated disappointments and strives not just to be successful but more importantly to be of value.
Edited by: Aashima Kakkar, Associate Editor, Law Insider
[i] National Human Rights Commission fresh Guidelines regarding intimation of Custodial Death (last visited on October 19, 2021)
[ii] Kishore Singh Vs State of Rajasthan 1981 SCR (1) 995.
[iii] Phoolwati Vs NCT of Delhi 2000 Cri LJ 1613: (2000) 84 DLT 177.
[iv] Moheela Moran Vs State of Assam (2000) 2 Gau LT 504.
[v] State of Andhra Pradesh Vs Challa Ramkrishna Reddy(2000) 5 SCC 712.
[vi] Challa Ram Konda Reddy Vs State of Andhra Pradesh AIR 1989 AP 235.
[vii] Press Trust of India, “348 Died In Police Custody, 5,221 In Judicial Custody In 3 Years: Centre”, Delhi News, August 11, 2021. (last visited on October 19, 2021).
[viii] Press Trust of India, “Life Lost To Custodial Violence: Gangster Death Case Transferred To CBI”, Delhi News, September 8, 2021, (last visited on October 19, 2021).
[ix] FP Staff, “Kashmiri teacher Rizwan Pandit’s custodial death is neither the first in the Valley, nor a singular event in India”, India News, March 21, 2019 (last visited on October 19, 2021).
[x] Press Trust of India, “Jayaraj-Fenix custodial deaths: CBI takes over probe into torture and killing of father-son duo”, India News, July 8, 2020 (last visited on October 19, 2021).
[xi] D.K. Basu Vs West Bengal State, (1997) 1 SCC 416.