-by Mr. Swarnendu Chatterjee (Advocate-On-Record, Supreme Court of India and Senior Associate-L&L Partners, New Delhi).
“With great power comes greater responsibility”Benjamin Parker
Custodial Deaths have become a never-ending saga of the world’s largest democracy and reflect absolute torture, assault and inhumane behavior meted out to an accused, who is very well protected by Article 21 of the Constitution of India. Custodial deaths raise serious questions about the credibility of the rule of law and administration of the criminal justice system.
The makers of law had foreseen the prevailing bizarre inhumane police system and administration; therefore, they had incorporated inbuilt protection/rights under the Constitution of India and issued guidelines in the form of law to curb the menace of Custodial Deaths and Torture. The framers of the Constitution and subsequently the legislature, casted certain duties and obligations on the Police/ State Authorities to safeguard the interest of arrested persons in police custody or judicial custody.
The Constitution of India in its Chapter III dealing with fundamental rights guarantees certain protection/rights to an arrested person where Article 21 states that no person shall be deprived of life or personal liberty except according to the procedure established by law. The Supreme Court had observed that an under-trial or convicted prisoner cannot be subjected to physical or mental restraint: which is not warranted by the punishment awarded by the Court, or which is in excess of the requirement of prisoner’s discipline, or which amounts to human degradation. Articles 20 and 22(2) of the Constitution of India secure fair and just procedure of criminal justice administration by the State Authorities and discourages the practice of resorting to violence in custody.
LEGISLATIVE CHECKS AND BALANCES
In the cases of custodial deaths and violence, the Police misuses its powers prescribed by law under the garb of protecting public interest. Various provisions of the Code of Criminal Procedure (Cr.P.C.), 1973 maintain ‘check and balance’ on the police authorities and ensure that the police do not act beyond the letter and spirit of law. Section 49 of Cr.P.C. provides that the person arrested shall not be subjected to more restraint than is necessary to prevent his escape. Section 57 of Cr.P.C. provides that no police officer shall detain in custody a person arrested without warrant for a longer period than twenty-four hours. Section 76 ensures that a person detained is brought before the court without unnecessary delay. Further, Section 163 of Cr.P.C ensures that the police officer while extracting any relevant information or confession should not resort to any kind of inducement, threat, violence or promise, which if done, shall run counter to Section 24 of the Indian Evidence Act, 1872. Due to the rising incidents of custodial deaths and violence, the Law Commission of India, in 1994, in its 152nd report recommended the insertion of Sections 176(1A) and 176(5) in C.r.P.C. to deal with custodial deaths and investigations. The said provisions were added by the Criminal Law Amendment Act of 2005. Sections 176 (1A) and 176(5) Cr.P.C, deal with the procedure to be followed in investigating a case of custodial death or violence. Both these provisions envisage fair and unbiased investigation to the said incidents.
The Indian Penal Code, 1860 penalizes offences committed by Police officers in cases of custodial tortures/deaths, in order to secure deterrence against such inhumane acts of the protectors and guardians of law and administration. Section 166 of IPC deals with Public servant disobeying law, with intent to cause injury to any person and punishment of simple imprisonment for a term which may extend to one year or with fine, or both. Section 167 provides for punishment of a public servant framing an incorrect document with intent to cause injury etc. Section 220 provides punishment to a person with legal authority to confine persons etc. who corruptly or maliciously confines any person, knowing that in doing so he is acting contrary to law. Section 330 of the Indian penal code is specifically addressed to the causing of hurt to extort a confession. Sections 340 to 348 of the Code constitute a group of sections dealing with wrongful restraint, wrongful confinement and their aggravations. Section 376(2) deals with aggravated form of rape committed by police officers and other public servants and punished for a term which shall not be less than ten years but which may be for life and shall also be liable to fine
The Indian Evidence Act, in its own way discourages custodial death, violence and torture by not assigning any evidentiary value to confessions made in police custody. It ensures that police officers do not opt for violence in securing a confession of an arrested person. Section 24 of the Indian Evidence Act deals with irrelevancy of a confession made by an accused person in a criminal proceeding, extracted by resorting to means of inducement etc. Section 25 states that no confession made to a police officer, shall be proved as against a person accused of any offence. Section 26 states that no confession made by any person whilst he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate, shall be proved as against such person.
The principle of burden of proof enshrined in the thread of the Indian Evidence Act has been interpreted by the Supreme Court in favor of the victims of custodial death by a laying heavy burden on the police officers. In the case of Nilabati Behra v. State of Orissa , the Supreme Court of India ruled that the burden of explaining a custodial death lays on the police rather than the victim.
ROLE OF JUDICIARY IN CURBING THE MENACE:
In the case of Prem Shankar Shukla v. Delhi Administration, the Supreme Court specifically referred to Article 5 of Universal Declaration of Human Rights and Article 10 of the International Covenant on Civil and Political Rights and held that handcuffing of under-trials, is impermissible, as it amounts to torture and the same is violative of Article 21 of the Constitution of India.
Further, the Supreme Court in the case Inderjeet v. State of Uttar Pradesh observed that the Prison restrictions amounting to torture, pressure or infliction and going beyond what the law prescribes are unconstitutional. The said finding was reiterated by the Supreme Court in Sheela Barse v. State of Maharashatra.
In Khatri v. State of Bihar, the Supreme Court in a Public Interest Litigation ordered an investigation and punished the guilty police officers who barbarically blinded about 30 prisoners by piercing their eyes with needles and pouring acid into their eyes and condemned this barbaric torture as violative of Article 21 and awarded compensation to the victims.
In the case of D.K. Basu v. State of West Bengal, the Supreme Court laid down following guidelines for the police officers regarding the arrest of a person and custodial interrogation:
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags.
(2) The police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest.
(3) A person who has been arrested or detained shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed that he has been arrested and is being detained at the particular place
(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 Aid Organization in the District and the Police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of his right to have one informed of his arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person.
(7) 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.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by the Director, Health Services of the concerned State or Union Territory. The Director, Health Services should prepare such a panel for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided to all district and State Headquarters, where information regarding the arrest and 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 board.
In the case Prakash Singh & Ors v. Union Of India And Ors, the Supreme Court has laid down following guidelines for the Central Government, State Governments and Union Territories regarding establishment of Police Complaint Authority at the district level to look into complaints against police officers of and up to the rank of Deputy Superintendent of Police. Similarly, there should be another Police Complaints Authority at the State level to look into complaints against officers of the rank of Superintendent of Police and above. It also recommends Separation of Investigation so that the investigating police shall be separated from the law and order police to ensure speedier investigation, better expertise and improved rapport with the people.
In Prakash Kadam v. Ramprasad Vishwanath Gupta, the Supreme Court observed that fake encounters by the police are nothing but cold-blooded murders, and those committing them must be given the death sentence, treating them in the category of ‘rarest of rare cases’. It was observed, “Trigger happy policemen who think they can kill people in the name of ‘encounter’ and get away with it should know that the gallows await them.”
In Re- Inhuman Conditions in 1382 Prisons, the Supreme Court suggests establishment of open jails and often use of mobile phone and video conferencing for communication with family and lawyer. Further, the Supreme Court recommended appointment of counselors and support persons for counselling prisoners, particularly first-time offenders in order to counsel and advise prisoners who might be facing some crisis situation or might have some violent or suicidal tendencies.
Supreme Court, recently in the judgment of Yashwant & ors. v. State of Maharashtra, had viewed the custodial death of the accused seriously and enhanced the term of punishment from three years to seven years. The judgment also assumes the importance, as it deprecates the use of the plea of defence of superior orders, which is popularly known as ‘Nuremburg Defence’ pleaded by the police officers. The earliest known example of such defence being pleaded was before an International Ad Hoc Tribunal, which conducted the trial of Peter Von Hagenbach for occupation of Breisach on the orders of Duke of Burgundy in the year 1474. Although such defence finds a place in our Indian Penal Code, however, the Supreme Court observed in the aforesaid case, that such plea has to be narrowed down to each fact and circumstance and cannot be applied en-bloc.
The Constitution of India, the Penal Laws of India and the Judgments of Supreme Court of India, discussed above, provides sufficient and reasonable protection for the arrested persons in the police custody, if it is implemented in letter and spirit. However, as Justice Oliver Wendell Holmes, the noted American Jurist, had said, that, “the life of the law has not been logic but experience,” therefore, going by that logic, we must introspect and see, as to where we are lagging. To me, where we are lagging is strict and time-bound implementation of the black letter law.
The commentary on Indian Penal Code by Ratanlal and Dhirajlal (27th Edition), the author, while discussing the sentencing under Section 330 of IPC notes as under-
“The causing of hurt by a responsible police officer engaged in investigation of a crime is one of the most serious offences known to law and deterrent punishment should be inflicted on the offender.”
The Sanskrit phrase, “Sadrakshnaya Khalanihrahanaya” (“To protect good and to Punish evil”), which is the motto of the Maharashtra State Police, should be implemented by the Police Force all over India and one must keep in mind, that state has a bigger responsibility to uphold the rule of law and act within the parameters of law but in derogation of law.
Recently in July 2020, a petition has been filed by People’s Charioteer Organization, through its secretary Devesh Saxena seeking implementation of guidelines laid down in D.K. Basu v. State of West Bengal and also seeking an effective and purposeful framework, ensuring and securing the right to life and to live with human dignity and the prevention of custodial torture, deaths and rapes. We as a nation, await certain directions by the Hon’ble Supreme Court and their implementation by the State.
To my mind, there are certain suggestions, which might curb custodial violence in the future.
Firstly, the Parliament should immediately take steps to enact the pending bill – Prevention of Torture Bill, 2010 which is in line with UN Convention against Torture, 1975. India is a signatory to it and a part of the modern world and humanity, one can expect protection of Fundamental Rights of the victims as well as the accused, otherwise the age-old saying, “An Eye for an Eye shall make the whole world blind,” shall come true. However, there are major lapses in the existing Bill, as it deviates from the definition of “torture” as defined by the U.N. Convention and excludes mental pain and suffering. It also mandates prior sanction to prosecute the alleged persons and has a time limit of six months from the date of such incident. Most importantly, the bill does not provide for an independent investigating authority, which shall conduct such investigation. Hence, the pending legislation should consider the aforementioned while updating the bill and presenting in the Parliament again. Although for implementation of such law, a writ petition is pending before the Supreme Court and it is yet to attain finality.
Secondly, a mandatory direction should be given that all the police stations and prisons to have CCTVs as per the direction of the Supreme Court in D.K. Basu v. State of West Bengal in 2015.
Thirdly, an independent wing comprising of retired police officers can be appointed by the government to conduct surprise checks on prisons and police stations and submit its report and propose actions against erring officials.
Fourthly, Section 114-B should form a part of the Indian Evidence Act, which provides for raising a rebuttable presumption of culpability against the police, if anyone in their custody dies or is found to be tortured, as recommended by the 113th Law Commission report in 1985.
Fifthly, it is suggested that the courts dealing with the cases of custodial deaths and violence should conduct the trial, as expeditiously as possible. If necessary, suitable legislation can be enacted by the parliament. Also, as suggested by the Supreme Court for establishment of open jails and often use of mobile phone and video conferencing for communication with family and lawyer.
Unless, we as a nation do not curb the menace of custodial deaths, the Criminal Justice System shall fall short of its Fundamental Duty to reform criminals, to the extent possible, as a part of modern society. At the same time, the State should ensure that the rule of law prevails and those guilty are punished in accordance with law, which should act as a deterrent to the society. One should act in accordance with law and not in derogation of it, else such an act of brutality shall be an anti-thesis to the Constitutional Morality which the framers of the Constitution had envisaged.
[Disclaimer- The views expressed in the article are personal views of the author]
Mr. Swarnendu Chatterjee (Advocate-On-Record, Supreme Court of India and Senior Associate-L&L Partners, New Delhi).
[The author may be reached at email@example.com]
Mr. Swarnendu Chatterjee (Advocate-On-Record, Supreme Court of India and Senior Associate-L&L Partners, New Delhi). He was duly assisted by Ms. Saloni Jain (Advocate, Delhi High Court)
[This blog is edited by Ms. Achintaya Soni|Student Editor||Adv. Advait Shukla|Senior Editor]
 Munshi Singh Gautam (D) & Ors v. State Of M.P (AIR 2004 SC 1272)
 Sunil Batra v. Delhi Administration (AIR 1968 SC 1675)
 Section 176(1A) deals with if any person dies or disappears, or rape is alleged to have been committed on any woman in the custody of the police or in any other custody authorized by the Magistrate or the Court then in addition to the inquiry or investigation held by the police, an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate.
Section 176(5) Cr.P.C provides that the Judicial Magistrate or the Metropolitan Magistrate or Executive Magistrate or police officer holding an inquiry or investigation, shall, within twenty- four hours of the death of a person, forward the body with a view to its being examined to the nearest Civil Surgeon or other qualified medical person appointed in this behalf by the State Government, unless it is not possible to do so for reasons to be recorded in writing.
 AIR 1993 SC 2366
 AIR 1980 SC 1535
 AIR 1979 SC 1867
 AIR 1983 SC 378
 AIR 1981 SC928
 AIR 1997 SC 3017
 (2006) 8 SCC 1
 (2011) 6 SCC 189
 2018 SCCONLINE SC 1336
 Y. Dinstein, “The Defence of Obedience to Superior Orders in International Law”, Leyden, 1965.
 Section 76 – Indian Penal Code, 1860.
 D.K. Basu v. State of West Bengal (2015) 8 SCC 744