“Life brought me, I came
Death take me away, I went
Neither I came on my accord
Nor went with my consent.”
Before I put down my views on custodial deaths I would like to quote Martin Luther King that “ Injustice anywhere is threat to justice everywhere”
The word custody implies guardianship and protective care. Even applied to indicate arrest or incarceration, it does not carry any sinister symptoms of violence during custody. No civilized law allows custodial cruelty-an inhuman trait that springs out of a preserve 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 over powered or a collective wrath of hypocritical thinking. It is one of the worst crime in the civilized society. Torture in custody flouts basic rights of citizens and is an affront to human dignity.
“Government as the omnipotent and omnipresent teaches the people by its example if the government becomes a law breaker brings contempt for law; it invites every man to become a law into him “1 1. olm steads v. united states 1928 us 438
Prisoners have human rights and the prison torture is the confession of the failure to do justice to living man. For a prisoner , all fundamental rights are an enforceable reality, though restricted by the fact of imprisonment. Simply stated, the death of a person in custody weather of the police or judicial will amount to custodial death. No doubt, the police plays vital role in safeguarding our life, liberty and freedom. But the police, must act properly, showing due respect to human rights of the people, remembering that they are also beneath the law, not above it and can be held liable for the violation of the human rights. One can always argue that prisons formed islands of the lawless discretion in a society guided by the values and often the practice of the rule of law, where the authorities exercised arbitrary power over the prisoners lives. The charge of brutal custodial violence by the police often resulting to death of the arrestees is not new. The figures of amnesty international in 1992 shows the number of deaths in police custody in India during the year 1985 to 1991 was 415. figures complied by the national crime records bureau shows that during the year 1990-92, as many as 258 rapes and 197 death in police custody where reported from all over the country. Needless to say, a large number of custodial violence incidents go unreported.
“The victims are invariably poor. Several of them hauled in on no formal charges at all. Even in the case of persons who were arrested, in an overwhelmingly large number of cases they were all accused of petty offences “.
The victims of custodial violence are people from poor and backward section of society with little political or financial power to back them. Personal enmity, caste and political consideration and at time pecuniary benefits becomes important consideration for custodial death rather than investigation of cases. Whenever death occurs in custody, it raises the public interest and attracts media attention. Not that at each time the death is due to violent causes but at times may be due to natural causes or due to inadequate medical facilities or medical attention and diagnosis, or negligent behavior of authorities or may be due to physical abuse and torture.
Persons held in custody, by police or by prison authorities, retain their basic constitutional right except for their right to liberty and a qualified right to privacy. The Magistrate inquest is mandatory for any death of a person in custody to ensure examination of the circumstances leading to death. Beyond Magistrate’s inquest and in recent years information to Human Right Commission, however, there is no formal public scrutiny of in-prison deaths and under such situations many avoidable factors leading to death remains unexplored. Furthermore, lack of evaluation and scientific analysis prevents the formation of strategy for better improvement.
When the state takes away a person’s liberty, it assumes full responsibility for protecting their human rights. The most fundamental of these is the right to life. Each year, however, many people die in custody. This report examines the causes of deaths in custody, and considers what may be done to prevent these deaths, and to better protect the right to life, and other human rights, of vulnerable people held in the custody of the state.
Custodial deaths are perhaps one of the worst crimes in a civilized society governed by the Rule of Law. There are numerous cases where the police officers have misused their powers on the people and toyed with their lives. The police officers, who are regarded as the custodian and guardian of law, have acted in just the contrary manner and have failed to protect the very basic right to life guaranteed by article 21 of the Constitution.
Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizen. It is committed under the â shield of uniform and within four walls of a police station or lock-up, the victim being totally helpless.
Whenever human dignity is wounded, civilization takes a step backward. It is a calculated assault on human dignity. Custodial violence and abuse of police power is not only peculiar to this country but it is also widespread. However in our country it is considered second to none. It has been a concern of the international community because the problem is universal and the challenge is almost global.
Custodial violence including torture and death in lock-ups strike a blow at the rule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law.
It is therefore, for the government and the legislature to give a serious thought to there commendation of the Law Commission and National Human Rights Commission and bring about appropriate change in the law both to curb custodial crimes & also to ensure that the guilty are punished.
Conceptual aspect regarding custodial death
Law has always discouraged the acts or omissions which in general can affect right in rem and violators have always been punished with strict sanctions but the crime rate is not falling and State is in regular quest to preserve social solidarity and peace in society. Whenever death occurs in custody, it raises the public interest and attracts media attention. Not that at each time the death is due to violent causes but at times may be due to natural causes or due to inadequate medical facilities or medical attention and diagnosis, or negligent behavior of authorities or may be due to physical abuse and torture. Since time immemorial man has been attempting to subjugate his fellow human beings. Those in power are used to twisting and turning the people through violence and torture, and torture under custody has become a global phenomenon. Men, women and even children are subjected to torture in many of the world’s countries, even though in most of these countries, the use of torture is prohibited by law and by the international declarations signed by their respective representatives. A problem of increasing occurrence and repugnance had been the methods of interrogation and torture perpetrated upon prisoners and detainees. Persons held in custody, by police or by prison authorities, retain their basic constitutional right except for their right to liberty and a qualified right to privacy. The Magistrate inquest is mandatory for any death of a person in custody to ensure examination of the circumstances leading to death. Beyond Magistrate’s inquest and in recent year’s information to Human Right Commission, however, there is no formal public scrutiny of in-prison deaths and under such situations many avoidable factors leading to death remains unexplored.
Provision under constitution of India regarding custodial death
However , in spite of the constitutional and statutory provisions aimed at safeguard the personal liberty and life of a citizen growing incidents of torture and death in police custody have been a disturbing factor.2
In the post-Maneka era, in a cantena of cases, the Supreme Court has exposed the cruelty of the system of Prison Administration in India and has sought to humanize it. The Court has taken an active interest in seeking to improve a system which is cruel and insensitive to human pain and suffering. Time and again , the Supreme court has emphasized that Art14, 19 and 21 ” are available to prisoners as well as freeman. And Prisoners wall do not keep out fundamental Right” Article 21 of the Constitution guarantees the right of personal liberty and thereby prohibits any inhuman, cruel or degrading treatment to any person whether he is a national or a foreigner. Any violation of this right attracts Article 14, which enshrines right to equality and equal protection of laws. Such rights are discussed in the International Covenant on Civil and Political Rights (ICCPR) as well. The Constitution recognizes it to be fundamental in the governance of the country that the State shall direct its policy to secure conditions of freedom and dignity and insulates against all forms of tyranny against mind and body and their freedom to grow fearlessly. All custodial safeguards in the constitutional and other laws are meant to protect human dignity and shun barbaric approaches. This is why no person accused of any offence shall be compelled to be a witness against himselfArt.20(3), a person is entitled to know why he is arrested for being detained in custody and to consult a legal practitioner of his choice . The right to live with human dignity enshrined in Art. 21 derives its life and breath from the directive principles of State policy particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 as held by the Supreme Court in bandhua Mukti Morcha
case. Art. 142 empower the Supreme Court to µmake such order as is necessary for doing complete justice in any cause or matter pending before it. The power of the Supreme Court under this provision is meant to supplement the existing legal framework in order to do complete justice between the parties and not to supplant it. It is intended to prevent any obstruction in the stream of justice. The innovations made by the Supreme Court is not only reducing the multiplicity of litigation but also helping the courts to
render speedy justice to victims of the infringement of right to life and personal liberty.
In Nilabati behera
State of Orissa,
Where , the Supreme Court awarded damages against the state to the mother of a young man beaten to death in police custody In tune with the constitutional guarantee a number of statutory provisions also seek to protect personal liberty, dignity and basic human rights of the citizens. Chapter V of the Criminal Procedure Code 1973deals with the powers of arrest of a person and the safeguards which are required to be followed by the police to protect the interest of the arrested person. Section 41, Cr. PC, confers powers on and police officer to arrest a person under the circumstances specified therein without any
order or a warrant of arrest from a Magistrate. Section 46 provides the method and manner of arrest. Under this section no formality is necessary while arresting a person. Under Section 49, the police is not permitted to use more restraint than is necessary to prevent the escape of the person.
Section 50 enjoins every police officer arresting any person without warrant to communicate to him the full particulars of the offence for which he is arrested and the grounds for such arrest .The police officer is further enjoined to inform the person arrested that he is entitled to be released on bail and he may arrange for sureties in the went of his arrest for a non-bailable offend. Section 56 contains a mandatory provision requiring the police officer making an arrest without warrant to produce the arrested person before a Magistrate without unnecessary delay and Section 57 echoes clause (2) of Article 22 of the Constitution of India. There are some provisions also like Sections 53, 54 and 167 which are aimed at affording procedural safeguards to a person arrested by the police. In
francis Corallie Mullin
Union Territory of Delhi,
the Supreme court has condemned cruelty or torture as being voilative of art 21 in following words ” any form of torture and cruelty or degrading treatment would be offensive of human dignity and it would on its view , be prohibited by article 21. It would be seen that there is implicit in article 21 the right to protection against torture or cruel, inhuman which is enunciated in Article 5 of Universal Declaration of Human right and guaranteed by Article 7 of International Covenant on Civil and Political Rights”.
Rule of law and custodial death
One of the worst crimes in civilized society governed by the Rule of Law is custodial deaths. This Rule of Law is particularly prevalent in India whereby the entire foundation is based on the edifice of law. The number of custodial deaths worldwide shows an increase when the law enforcing agencies use harsh methods to control militancy and the problem with custodial deaths is that there is very little evidence left behind to prove crimininality in a court of law.
The right to life and liberty is one of the most important fundamental rights enshrined in basic human rights. However, instances of excessive force by Police far exceeding their lawful authority is attributed to the rise in custodial deaths. Torture of any kind whilst in Police custody is a crime and a heinous one at that.
Sadly, when Police who are supposed to protect the life and liberty of a citizen behave inhumanely with scant regard for the rule of law, this encourages further lawlessness and breeds contempt for the law within society. With little evidence left behind it is extremely hard for a family to bring the police to court and attain justice. Only a very few cases of families whose relation was killed whilst in custody actually bring the case to the courts. There should be zero tolerance for any form of custodial deaths.
Faced with the resistance of the Police, lack of evidence, and the current court systems I believe that any family who does take the route of a court case has an extreme mountain to climb. Having said this, any form of custodial death, particularly by beatings, should be taken very seriously in any judicial system. Custodial deaths are like a cancer in the blood of society and servants of citizens, the Police, should be half responsible for any such injustice.
Let the law send a clear message to law enforcing agencies that zero tolerance is the new rule of thumb. So many times we have seen clear and horrific pictures on the news where a person is abused by our current legal system whether it be racial, drugs related or just a personal vendetta. Our society needs to ensure that every single citizen is protected by our laws, send out clear pictures to law enforcing agencies that any form of death whilst in custody will be fully investigated by an independent body not related to the Government nor the Police and finally, remove the nemesis of the atrocious act of custodial deaths from our “civilized” society.
Police atrocities: some concern
Power has the tendency to make men go dizzy and policemen are no exception. Powers are granted to the police in order to enable them to enforce the law and protect people effectively. However, it is sometimes the desire to solve a case at the earliest and sometimes plain greed that makes them use it illegally. Article 21 of the Constitution provides that no person shall be deprived of his life and personal liberty except according to procedure established by law, which is an inbuilt guarantee against torture or assault by the State or its functionaries. The Code of Criminal Procedure also provides the safeguards against legally questionable detention by laying down the procedure to be followed by the police while making arrests. However, torture and assault have become a part of police ways unfortunately and in many cases custodial deaths have been found to be little short of ‘custodial murder’. Custodial violence raises serious questions about the credibility of the Rule of Law and administration of criminal justice system. An offender has every right to be tried and punished in accordance with the law and any punitive action taken outside the ambit of law is illegal. Besides, no matter how heinous the crime be, and howsoever dangerous be the criminal, he or she has every right to be treated with human dignity. The courts have even discouraged the practice of handcuffing the accused unless it is necessary. Several international conventions universally recognize human rights as inalienable. The standard minimum rules for the treatment of detente and prisoners, convention against torture and other cruel, inhuman or degrading treatment or punishment, the code of conduct for law enforcement officials adopted by United States General Assembly in 1979, are some of the significant international conventions in this regard. The Law Commission of India has recommended that the menace of custodial violence be curbed and the police authorities are more conscious of the rights of the accused so that the Rule of Law could preserve its credibility.
The third report of the national police commission in India expressed its deep concern with custodial violence and lock-up deaths. It appreciated the demoralizing effect which custodial torture was creating on the society as a whole it made some very useful suggestion. It suggested-
An arrest during the investigation of a cognizable case may be considered justified in one or other of the following the Circumstances. The expression “life or personal liberty”
in Article 21 includes a guarantee against torture and assault even by the State and its functionaries to a person who is taken in custody and no sovereign immunity can be pleaded against the liability of the State arising due to such criminal use of force over the captive person. The right to interrogate the detainees, culprits or arrestees in the interest of the nation, must take precedence over an individual’s right to personal liberty. The Latin maxim salus populi est suprema lex (the safety of the people is the supreme law) and salusrepublicae est suprema lex (safety of the State is the Supreme law) co-exist and are not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however, must be “right, just and fair”. As held by the Supreme Court in a case that “custodial torture” is a naked violation of human dignity and a degradation which destroys to a very large extent human personality. Here the SC had prohibited the use of third degree methods on suspects and framed various guidelines for protecting their human rights.
Most of the information that has surfaced has been due to the vigilance and effort of the press and civil rights organizations. The police are always tightlipped. In fact, the police authority in Punjab and Haryana refused to give any detail on the death in custody during a survey conducted last year, as they did not recognize any such happening in the previous year.
“The who have to supply an official report to the home ministry annually does have a record of death in police custody.” it is revealed by a senor police officer in Delhi. Justice Sharma sarkar commission was set up to investigate the number and frequency of lock up deaths. Though the report was submitted to the government in 1976, because of the emergency censorship it never saw the light of the day.
Recently a PUCL commit tee reported a number of such death in the Nellai district of Andhra Pradesh. In on case poolpadii, who was wanted in a case of theft, was
apprehended. The police killed him brutally. The story they put out was that while being taken to the police station he tried to escape and was shot.
In another case of seevaliperi pandi, who was allegedly shot dead by the police on the hillside of vallanad, the usual fabricated story was floated of a criminal having been killed by other hired criminals. In yet another case, Rajmohan was subjected to inhumane torture by the kulasekarapattinam police, while he was standing near the judicial second class magistrate’s court in tiruchendur, he was arrested by the police without a warrant, taken to kulasekarapattinam after being paraded through the streets handcuffed. He was installed in the lockup on afternoon of august 18, 1981. There he was believed to have been tortured and finally shot dead in the middle of the night. What was the story circulated by the police on this occasion ? That a mob attacked the police station to secure rajmohan’s release and the police had to open fire to contain them, in which rajmohan died.
Underlying all these incidents is the all- too- familiar refrain of the police to explain away deaths in lock ups. “fired at while trying to escape.” “other criminals fired at him” “a mob attacked the police station” ”we had to fire in self defence” “he committed suicide” they have perfected the techniques of exploiting the loop holes in the law. One take the form of a beating with a lathi or a nailed boot in a secluded place. It is then convenient for them to put out the story that the suspect was injured because he resisted arrest. In many cases they “arm” the victim with an instrument they claim he used againt them.
Attack by a mob has also become a common and favourite trick of the trade. The scene is carefully set up to round up a man. When the police picks up their prey in a public place, a number of plainclothesmen officially posted in the crowd attack him. The crowd gets the impression that it was the public ire let loose on the offender. Another common procedure is to take the accused to the police station, then straight to the interrogation chamber, a dark cell in an isolated corner away from the prying eyes of even co-prisoners. Only after the torture treatment is meted out, is the case logged in the police diary. The police station has to maintain an hourly diary of what is termed as the logging
procedure in which any injuries on the person arrested and the time of his arrest are to be entered. As they do logging after the “interrogation chamber treatment”, the police can say in all honesty, that the suspect sustained the injuries after his arrest!
After an arrest is made and the person produced before a judicial magistrate within 24 hours, the police can ask to detain him longer for interrogation. And this is the crucial period for extorting information.
Normally the third degree methods now used for interrogation, revealed a DIG, are those that are not likely to leave telltale marks. If they do, they disappear in the 14 days between a person’s arrest and judicial remand if he lives. They include beating the suspect on the soles of his feet with rubber truncheons; hitting his knees, elbows, buttocks, ankles, palms, in fact any part of the body that is sensitive but will show no marks; stringing the prisoner from metal hooks fixed on to the roof by his thumb; squeezing the testicles till the person faints; applying anything sweet on his rectum on which ants are made to crawl; and passing electric current into the person’s ears, hands or soles.
Torture has even been institutionalized in Punjab and Haryana in the form of the Criminal Interrogation Agencies (CIA). The major difference is that the CIA men excel in methods of interrogation and not investigation. A CIA squad, very much part of the district police force, is headed by an officer of inspector rank. Normally, it has no powers of arrest as the cases are registered and dealt with by the police stations. The CIA activities acquire a little legitimacy in stray, blind cases which are transferred to it after the staff at the police station has failed. Usually 90 per cent of the suspects in these two states are produced for remand more than two days after their ‘arrest’, normally made by the CIA which is under no police station’s jurisdiction. More often than not the CIA man arrests anyone on the faintest of suspicion and tries to extort a confession. The ‘arrest’ of course is not on the record and if the victim dies during interrogation, the agency denies ever having seen him. If he confesses or helps the interrogators recover anything connected with the crime, he is transferred to a proper Police Station and formally arrested. If he refuses to crack or looks innocent after some rounds of torture, he is just let off, often at night, and told to be wise enough not to complain to anyone.
On November 3, 1979, the CIA staff of Haryana police arrested Gangu, a Bawaria of village Dehina in Mahendragarli district. Two days later he died in their custody. A cursory, non-committal autopsy was conducted in Narnaul. But later an autopsy at Rohtak Medical College established it as a case of death due to torture.
Gangu’s wife, Misarli, filed a private complaint against the policemen and later the police registered a case of murder against the two constables allegedly responsible for the death. But the inspector-in-charge of the CIA staff, Kehar Singh, was let off and banished from the scene by being transferred to Chandigarh on deputation with the Union Territory Police force. Misarli was later shot dead, allegedly by the Delhi police, at her village on June 23, 1980, two day before her private complaint was to come up for hearing.
“Once a man is behind bars, he is at the mercy of the police,” admitted a former DIG of Delhi police. “Thanks to the advantage they have in using their own doctor and hospital, they can account for any ‘suspicious’ deaths in a very satisfactory manner”. In these cases the post mortem is always done in a police hospital and carried out by a police surgeon. He is also the Coroner’s surgeon and, what must not be forgotten, a government employee. The Coroner’s Court relies on the official records for evidence at the inquest and of course on interested parties, if there are any. Since hardly anyone even questions the cause of a custody death, the official evidence is normally accepted as final. Members of the public are usually wary of getting involved because the person concerned is a suspected criminal. If the relatives inquire into the cause of the death, they too are often threatened with dire consequences, as happened with Gangu’s wife Misarli.
Private defence or murder
As a necessary corollary to such defence it is imperative that there is a registration of first information report (FIR) considering such a death as murder or culpable homicide not amounting to murder. In order to claim a right of private defence to cause death, the person must show that there were circumstances giving to reasonable grounds for apprehension that death, or other acts described earlier would have resulted if the right was not exercised. Courts have held that if medical examination of the person reveals superficial or simple injuries, there can be no right to private defence. The violence used to defend oneself must not be unduly disproportionate to the injury that is sought to be averted and should not exceed its legitimate purpose.
But in order to prove that it was a legitimate exercise of the right, it is necessary to have an investigation with the burden of proof shifting to the person who claims this right. This right to private defence cannot be used to punish a suspect.
However FIRs, in most encounter cases, invariably state that on seeing the police the other party opened fire with a view to kill or threatened to kill. The issue of considering whether the death was a result of private defence or was one of murder is never factored
in the FIR. Family members of the deceased or human rights activists who wish to reopen such cases find it an uphill task to get even a death certificate or post-mortem report and are thwarted at every stage, often facing threats to their life.
Encounter killing by police
A fake encounter or a “staged encounter” happens when the police or armed forces kill the suspects in custody or when the suspects are unarmed, and then claim that the victims were killed in a encounter when the police had to shoot in self-defence. In such cases, the weapons may be planted on or near the dead body to provide a justification for killing the individual. To explain for the discrepancy between records that show that the individual was in police custody at the time of his “encounter”, the police may state that the suspect had escaped. Such killings are not authorized by a court or by the law.
In the 1990s and the mid-2000s, the Mumbai Police in India used the encounter killing to cripple the underworld in the city and bust the rampant extortion racket. The police officers, who came to be known as “Encounter Specialists”, believed that these killings delivered speedy justice, but were criticized by the human rights activists
The police in Indian cities such as Mumbai, Chennai, Kolkata have a very high rate when it comes to encounter killings. Some of them have been quite controversial because of the allegations that they were fake encounters.
According to the National Human Rights Commission of India, there were 440 cases of alleged fake encounters in the country during 2002-2007. Most of these happened in the states of Uttar Pradesh (231), Rajasthan (33), Maharashtra (31), Delhi (26), Andhra Pradesh (22) and Uttaranchal (19).
From 2008-09 to June 2011, NHRC recorded 369 cases of alleged fake encounters. By June 2011, NHRC had resolved 98 of these cases, while the rest were pending settlement. The states with high number of cases were Uttar Pradesh (111), Manipur (60), West Bengal (23), Tamil Nadu (15) and Madhya Pradesh (15).
Custodial death: gross violation of human rights
Judicial conscience recognized human rights of prisoners because of its reformist approach and the belief that convicts is also human beings and that the purpose of imprisonment is to reform them rather than to make them hardened criminals. The Universal Declaration of Human Rights1948, adopted and proclaimed by the General
Assembly Resolution 217A(III) of 10th December,1948 declared in the preamble that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. The expression-“Human Rights” has not been specifically defined in any Declaration or Covenant of the United Nations.- Human Rights are generally defined as “those rights which are inherent in our nature and without which we
cannot live as human beings” recognition of these natural rights of human beings is as ancient as the human civilization. India was one of the signatories of the Universal Declaration of Human Rights, and acceded to the two International Covenants by depositing the Instrument of Accession of April 10, 1979.The Vienna Declaration and Programme of Action adopted on June 25, 1993, by the World Conference on Human Rights declared that “Human Rights and fundamental freedom are the birth right of all human beings” .The Human Rights are now recognized as the limits to the exercise of power by the State over individuals.
Human rights commission
The official machinery for the protection of human rights in this country was set in motion by the then President’s assent to the Protection of Human Rights Act came in to force on September 28 , 1993. Section 3 of the Act provides for the setting up of the National Human Rights Commission (NHRC) and Section 21 for the setting up of the various State Commissions (SHRC). The National Human Rights Commission in its Annual Report of 1997-98 records that during the year 1996-97, 188 deaths in Police Custody were reported and during the year 1997-98, 193 deaths in Police Custody, and 700 deaths and 819 deaths respectively in judicial custody were reported to the Commission. In the context of addressing the issue of custodial torture, the Commission has reiterated its earlier recommendations by soliciting early action on the suggestion of the Indian Law Commission to the effect that proposed Section 114(B) be inserted in the Indian Evidence Act to introduce a rebuttable presumption that injuries sustained by a person in police custody may be presumed to have been caused by a Police Officer, as well as the suggestion for amendment in Sec. 197 of the Cr. P.C. to obviate the necessity for governmental sanction for the prosecution of a police officer where a prima-facie case has been established in an inquiry conducted by a Sessions judge in the commission of a custodial offence, as also the suggestion by the National Police Commission that there should be a mandatory inquiry by a Sessions Judge in each case of custodial death, rape or grievous hurt.
The law commission recommended in its 113th Report that in prosecution of a police officer for an alleged offence of having caused bodily injury to a person, if there was evidence that the injury was caused during the period when the person was in the custody of the police officer, the court may presume that the injury was caused by the police officer having the custody of that person during that period. In Shyamsunder Trivedi’s case the Supreme Court also expressed that hope that the government and legislature would give serious thought to the recommendation of law commission. Unfortunately, the suggested amendment has not been incorporated in the statute so far. The need of amendment requires no emphasis, sharp rise in custodial violence, torture and death in custody, justifies the urgency for the amendment and the court invites Parliament attention to it.
Supreme court on custodial death
These requirements ensure, the record of the police personnel arresting and handling the arrestee, the record of arrest, the record of his whereabouts during detention, giving of information to his relative or acquaintance having interest in his welfare, periodic medical examination of the arrestee to ascertain whether any force is used and the state of his health which in custody, preparation of “Inspection memo” recording injuries if any on the arrestee so that the events of custodial violence can be easily detected and the perpetrations are duly dealt with. These requirements which flow from Art. 21 and 22(1) of the Constitution are ordered to be strictly followed not only by the Police agencies but also by the other governmental agencies. The Apex Court through judicial activism evolved a right to compensation in cases of established unconstitutional deprivation of personal liberty or life. The µBhagalpur blinding case was the first case where the question of monetary compensation was considered by the Hon’ble Supreme Court.In
State of Orissa
it was held,” Adverting to the grant of relief to the heirs of victim of custodial death for the infraction or invasion of rights guaranteed under Article 21 of the Constitution of India, it is not always enough to relegate him to the ordinary remedy of in civil suit to claim damages for the tortuous act of the State ,is that remedy in private law indeed is available to the aggrieved party”. The citizen complaining of the infringement of the indefeasible right under Article 21 of the Constitution cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law by the Courts exercising writ jurisdiction.
The primary source of the public law proceedings stems from the prerogative writ and the Courts have , therefore, to evolve ‘new tools’ to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law. Here the Supreme Court awarded damages against the State to the mother of a young man beaten to death in police custody. The Court held that its power of enforcement imposed a duty to ‘forge new tools’, of which compensation was an appropriate one where that was the only mode of redress available. It was said that if death in police custody the deceased is entitled for monetary compensation under article 32 and 226 of constitution of India. This was not a remedy in tort, but one in public law based on strict liability for the contravention of fundamental rights to which the principle of sovereign immunity does not apply.
The apex court in
Sebastian M Hongrey v. Union of India
where Supreme Court by a writ to herbs corpus required the Government of India to produce two persons and Government eventually failed to produce them expressing its inability to do so and the assertion of the Government that the person left certain camp near which a certain army regiment was stationed alive was untenable and incorrect, the Government would be guilty of civil contempt because of the willful disobedience to the writ. The Apex Court keeping in view the torture, agony and mental oppression of the family members of such persons, directed payment of cost of Rs. 1lakh each. In
Smt J Nilabati behera Lalita bahera
State of Orissa ,
the Apex Court held that violation of human rights by the State should be compensated and writ of compensation is maintainable. It further held that sovereign immunity is not applicable in case of violation of fundamental rights. In a decision of the Supreme Court in
People’s Union for Liberties v. Union of India which was case from Manipur, a disturbed area, in which case
there was a fake encounter and two persons alleged to be terrorist- were seized by police, taken to a distant place and shot at causing their death it was held that such administrative liquidation cannot be permitted and interference of the Court is called for. The Apex Court awarded a compensation of rupees 1 lakh to families of each of the deceased. The apex court in
Raghubir Singh v. State of Haryana
held that the society was deeply disturbed by the diabolical recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new peril, when the guardians of law gore human rights, to death. This development is disastrous our human right awareness and humanistic constitutional order.
Supreme Court comes down heavily on custodial violence
Warning that custodial deaths if left unchecked would lead to anarchy and barbarism,
the Supreme Court has called for stern measures to combat the menace as otherwise the people’s confidence in the country’s criminal justice system will be destroyed. “Unless stern measures are taken to check the malady of the very fence eating the crops, the foundations of the criminal justice delivery system would be shaken and civilization itself would risk the consequence of heading towards total decay resulting in anarchy and authoritarianism reminiscent of barbarism,” a bench of Justices Arijit Pasayat and
Asok Kumar Ganguly observed. The apex court passed the observation while dealing with the plea for compensation filed by Dalbir Singh, an agriculturist whose 17-year old son was allegedly killed in police custody in Noida in Uttar Pradesh. “Police excesses and the maltreatment of detainees/ under trial
prisoners or suspects tarnishes the image of any civilised nation and encourages the men in ‘Khaki’ to consider themselves to be above the law and sometimes even to become a law unto themselves,” the bench said. According to the apex court custodial deaths violated Article 21 of the Constitution which
provides for “Right to Life and Liberty.” (The hindu )
Torture in custody is an affront to human dignity: Apex Court
The Supreme Court has expressed serious concern over the increasing number of custodial deaths and called upon the law-enforcing agency to take immediate remedial measures . A Bench consisting of Justices Arijit Pasayat and A.K. Ganguly said: “Custodial violence, torture and abuse of police power are not peculiar to this country, but it is widespread… The Universal Declaration of Human
Rights in 1948 which marked the emergence of a worldwide trend of protection and guarantee of certain basic human rights stipulates in Article 5 that ‘No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment’.” The Bench said: “Despite this pious declaration, the crime continues unabated, though every civilised nation shows its concern and makes efforts for its eradication.
If it is assuming alarming proportions, nowadays all around, it is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from roof tops to be the defenders of democracy and protectors of people’s rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace-loving puritans and saviours of citizens’ rights.” The Bench said, “Torture in custody flouts the
basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Police excesses and the maltreatment of detainees/under trial prisoners or suspects tarnish the image of any civilised nation and encourage the men in ‘khaki’ to consider themselves to be above the law and sometimes even to become law unto themselves. “The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve, otherwise the common man may tend to gradually lose faith in the efficacy of the system of judiciary itself, which, if it happens, will be a sad for anyone to reckon with.” In the instant case, petitioner Dalbir Singh was aggrieved over the death of his son in Noida police custody. Instead of filing a case of murder under Section 302 IPC against the police a case of 306 IPC (suicide) was filed as if the victim had committed suicide, he said (The hindu )
observation of law commission
“even if the police record the arrest and custody of the victim, a death in the police station is made to look like a suicide or accident the body is disposed of quickly, with the connivance of a doctor. Records are manipulated to shield the police personals responsibilities. The local politician and warlords join the conspiracy. The relatives and friends of the victim are unable to seek justice because of fear, poverty and ignorance. Police atrocities and custodial violence have become so much part of our lives that films and novels have recently made them staple themes. ”
National human rights commission : Guidelines
A. When the police officer in charge of a Police Station receives information about the deaths in an encounter between the Police party and others, he shall enter that information in the appropriate register.
B. Where the police officers belonging to the same Police Station are members of the encounter party, whose action resulted in deaths, it is desirable that such cases are made over for investigation to some other independent investigating agency, such as State CBCID.
C. Whenever a specific complaint is made against the police alleging commission of a criminal act on their part, which makes out a cognizable case of culpable homicide, an FIR to this effect must be registered under appropriate sections of the I.P.C. Such case shall invariably be investigated by State CBCID.
D. A Magisterial Inquiry must invariably be held in all cases of death which occur in the course of police action. The next of kin of the deceased must invariably be associated in such inquiry.
E. Prompt prosecution and disciplinary action must be initiated against all delinquent officers found guilty in the magisterial enquiry/ police investigation.
F. Question of granting of compensation to the dependents of the deceased would depend upon the facts and circumstances of each case.
G. No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers soon after the occurrence. It must be ensured at all costs that such rewards are given/ recommended only when the gallantry of the concerned officer is established beyond doubt.
H. A six monthly statement of all cases of deaths in police action in the State shall be sent by the Director General of Police to the Commission, so as to reach its office by the 15th day of January and July respectively. The statement may be sent in the following format
along with post-mortem reports and inquest reports, wherever available and also the inquiry reports:-
Date and place of occurrence
Police Station, District.
Circumstances leading to deaths:
- I Self defence in encounter
- ii. In the course of dispersal of unlawful assembly
- iii. In the course of effecting arrest.
Brief facts of the incident
Criminal Case No.
Findings of the magisterial Inquiry/enquiry by Senior Officers:
Cases on custodial death
State of West Bengal
The executive chairman legal Aid Service, West Bengal, a non political organization register under the societies registration Act, on 26th August 1986 address a letter to the Chief Justice of India drawing his attention to certain news items published in the telegraph dated 20,21 and 22of July 1986 and in the statesman and Indian Express dated17th August, 1986 regarding death in police lock-ups and custody. The executive chairman after reproducing the news items submitted that it was imperative to examine the issue in death and to develop Custody Jurisprudence´ and formulate modalities for awarding compensation to the victim and /or family members of the victim for atrocities and death caused in police custody and provide for accountability of the officer concerned it was also stated in the letter that efforts are often made to hush up the matter of lock-up deaths and thus the crime goes unpunished and flourishes´ . It was requested that the letter along with the news items be treated as a writ petition Public interest Litigation´ category. Considering the importance of the issue rose in the letter and being concerned by frequent complaints regarding custodial violence and death in police lock-up, the letter was treated as a writ petition and notice was issued on 9/2/1987 to the respondent In response to the notice the State of West Bengal filed a counter. It was maintain that the policewas not hushing up any matter of lock-up death and that wherever police personnel were found to be responsible for such death, action was being initiated against them. The respondent characterizes the writ petition as miss conceived misleading and untenable law. After hearing the parties Supreme Court held custodial death is perhaps one of the worst crime ina civilized society Governed by the rules of law. The rights inherent in Article 21 and 22 (1) of the Constitution require to be jealousy and scrupulously protected. Court cannot wish away the problem. Any form of torture or cruel inhuman or degrading treatment would fall within the inhibition of Article 21 of
the Constitution, whether it occurs during investigation interrogation or otherwise if the functionary of the Government become law breakers, it is bound to be contempt for law and would encourage lawlessness and everyman would have the tendency to become a law unto himself there why leading to anarchanism. No civilized nation can permit that to happen thus a citizen said of this fundamental right to life, the moment a police men arresthim? Can the right to life of a citizen we put abeyance on his arrest? These questions touch the spinal cord of human rights jurisprudence. The answer, indeed, has to be an emphatic µno¶ the precious right guaranteed by Article 21 of Constitution of India cannot be denied to on with unreal detents and other prisoner in custody expect according to the procedure established by law by placing such reasonable restriction as are permitted by law. The Supreme Court also issued the following requirement to be followed in all cases of arrest or detention till legal provision is made in that behalf as preventive measures.
1. The police personal carry out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and named tags with their designation. The particular of all such police personnel who handle interrogation of the arrested must be recorded in a register.
2. That the police officer carrying out arrest of the arrestee self prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness. Who may be either amember of the family of the arrestee or a respectable person of the locality from where the arrestis made. It shall also be counter signed by the arrested and shall contain the time and the date of arrest.
3. 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 me entitled who have one friend or relative or other person known to him or having interest in his welfare being informed as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the nemo of arrest his himself such a friend or a relative of the arrestee.
4. 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 head organization in the district and the police station of the area concerned telegraphly within a period of 8-12 after the arrest.
5. The person arrested must be made aware of this right to have someone informed of his arrestor detention as soon as he is put under arrest or his detained.
6. An entry must we made in the diary at the place of detention regarding the arrest of the person which shall also disclosed the name of the 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.
7. The arrestee should, where he so request, be also examined at the time of his arrest and major and minor injuries, if any person on his/her body, must be recorded at that time. The inspection memo´. Must be signed by both the arrestee and the police officers effective the arrest and its copy provided to the arrestee.
8. The arrestee should be subjected to medical examination by a trained Doctor every 48 Hrs during his detention by a doctor on the panel of approved Doctor appointed by Director, health service of the concerned State or Union Territory Director, Heal service should prepare such a panel for all Tehsil and District.
9. Copies of all the documents including the memo of arrest, referred to our, should be sent to the illqa Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation, though not through out the interrogation.
11. A police central room should be provided at all District and State Headquarters, where information regarding the arrest and the place of custody shall be communicated by the officer causing the arrest, with in 12 Hrs of effecting the arrest and the police central room should be displayed on a conspicuous notice board Failure to comply with the said requirement shall apart from rendering the concerned official liable for departmental action, also render him liable to be punished for contempt of court and the proceeding of court may be instituted in any High Court of Country having territorial Jurisdiction matter.
State of M.P.
Shyamsunder Trivedi and others
This was an appeal filed by the State of M.P. against acquittal of the police officials by the trial court and the High Court. As per prosecution case one Nathu Banjara of village Dhabala Deval, brought to police station Rampura for interrogation as a suspect in murder case was tortured by the police with the intension of extracting a confession and died consequently on 13/10/1981.The allegations were denied by the accused as his dead body was found unclaimed at a distant place. Three of the respondents, head constables Ram Naresh Shukla and Raja Ram Mishra and constable Ganniuddin, while reversing the acquittal of the courts below, were convicted under Section 304 part II/34, 201 and 342 IPC and were fine Rs 20,000 each. Whereas respondent number 1 was convicted 304 part II/34 and sentenced for two years with a fine of Rs 50,000. The analysis made by the court was that if there was evidence that the injury to any person was caused when he was in police custody the court may presume that it was caused by the police officer having that custody unless the officer proves the contrary. Further the post mortem report also pointed out towards anti mortem torture.
Praful Kumar Sinha
State of Bihar and others
In this case compensation was sought in Tort Law by the family of three persons who had died in police custody due to atrocities committed by the police.
The apex court directed under Articles 32 and 21 of the Constitution of India the State Government to make ex gratia payment of Rs 25,000 to family of each deceased. The settled principles of Law of Tort were invoked and the direction was also issued that the State Government may recover this amount from the tort feasors, that is, the police officials.
The reason for reaching the decision in this criminal writ petition was to compensate the family members the loss to some extent
Smt Nilabati Behera
State of Orissa
This writ petition was entertained by the Supreme Court under Article 32 of the Constitution on a letter dated 14/09/1988 sent to the court by the petitioner for determining the claim of compensation consequent upon the death of her son
On 01/12/1987 at about 8:00 AM the petitioner¶s son, Suman Behera,22, was taken from his home by the police in connection with the investigation of an offence of theft and was detained at the police out post. On 02/12/1987 at about 2.00 PM his dead body was found at some distance on the railway track. Since no action was taken by the police, the apex court was contacted through the letter. The defense of the police was that the allegations made against the police were false as the deceased had managed to escapes from police custody at about 3.00 AM and could not be apprehended thereafter in spite of a search were Taking consideration of the multiple serious anti mortem injuries on the body of the deceased, the court observed that the death was obviously unnatural and he had died as a result of the multiple injuries inflicted upon him while he was in police custody and there after his dead body was thrown on the railway track.
The court observed that it was clear violation of human rights and fundamental freedoms by the state and its agencies and in such type of cases compensation is an acknowledged remedy. Further, defense of sovereign immunity was not available in case of violation of fundamental rights was not available in defense and the court has obligation to grant the relief of compensation. The court awarded Rs 150,000 as compensation
Mani Kumar Thapa
State of Sikkim
This was second appeal to the apex court after two successive convictions by the Sessions court and the High Court respectively. On 12/02/1988 the accused police officials contacted the deceased near his house who was taken by them in the jeep and there after his body was not found.
No action was taken by the police on complaint of his wife but later on the FIR was registered against the police officials. The Sessions court convicted all the accused and High Court maintained the conviction on the ground that there was cogent evidence of the prosecution that the deceased was taken by the police on 12/02/1988 and thereafter he was not only killed by the police but also his dead body was disappeared.
The apex court treating it a case of circumstantial evidence relied upon the successful proof of last scene theory and other links of the chain , dismissed the appeal. It also observed that as per evidence of the prosecution witnesses, the accused one, a police sub ± inspector, was inimical to the deceased and, therefore, there was sufficient motive for him to kill the deceased.
1. The police should be trained to use new scientific and parallel and psychological subjective techniques instead of using torture.
2. The working conditions of the police personnel should be improved and they should be provided with more promotional avenues on seniority basis.
3. The control of the Police should be brought under the Governor of the concerned State so that the police could work in a clean atmosphere free from political pressures.
A separate offence provision should be made by amending Section 302 of the Indian Penal Code regarding treatment of custodial death as murder.
5. The adequate medical facilities should be provided in jails so that in case of emergency proper and timely medical help could be provided to the persons in the jail custody.
6. A counsel should be allowed to be present during interrogation to check the custodial violence by investigating officer.
7. The scientific facilities/techniques to police personnel should be provided to use during interrogation. It will be more useful in stopping this heinous crime.
8. The arrest of accused during interrogation may be considered justified in case of grave offences like murder, dacoity, robbery, rape etc., or when accused is likely to abscond and evade the process of law or when the accused is a habitual offender.
9. Section 114-B in the Indian Evidence Act, 1872 as recommended by the Law Commission in its 113th report, should be inserted to introduce a rebuttable presumption that injuries sustained by a person in police custody were caused by the police officer.
10. The compensation in case of custodial deaths should be a State responsibility. The State Government in turn can recover the amount of compensation from the offenders. For implementing this, a separate Tribunal/Board should be set up at the District level.
11. The Government should provide medical facilities in Government hospitals free of cost to the dependants of the victim of the custodial death.
12. The Government should provide free education up to graduation level to the dependants of the victim of the custodial death.
13. The Government should reserve a quota of one percent in Government jobs for at least one of the dependants of the victims.
14. The Government should reserve a quota of one percent in educational institutions for higher education for the dependants of the victims.
15. The most important requirement is to sanction a monthly pension to the dependants of the victim of custodial death because Government is liable for their miseries and sufferings.
“Peace will not come out of a clash of arms but out of justice lived and done” Mahatma Gandhi