Author: Simran, 4th Year, BA LLB, SDM Law College, Mangalore
2019 has witnessed 1,731 Custodial deaths. In India everyday around 5 people die in custody. These deaths create controversy and severe public criticism on the authorities. In this research paper an attempt has been made by the researcher to get a clear perspective of what is Custodial death with respect to Indian laws and how it violates basic human rights. Most of the victims are from poor and weak backgrounds therefore judicial inquiries have to be done. There must be a balance between the rights of individuals and public interests in opposing crime by using practical approach. The researcher in this paper aims to discuss regarding Custodial death, with caselaws, discussing some methods of torture, and compensation concluding with suggestions and recommendations.
Keywords: Custodial death, Human rights, Torture, Violation, Compensation.
Custodial death is the consequence where death of an individual takes place, when he is detained by the authority either as convicted or because of under trial. Existence of this worst crime in civilized society is a shocking fact. Here the enforcement of law agencies become the offenders and violate human rights. This is the result of abuse of authority. Eventually it results in discrimination against the caste and religion. This kind of brutality is accepted and practiced since the past in order to get confessions from the suspected offender. Most of the time these deaths are represented as natural death or it’s a suicide and escapes from the conviction. There is every chance to manipulate the details. Every time a court meets with a custodial death case, a common question that arises is whether an offender or suspect loses his right to life which is guaranteed under fundamental rights of Indian constitution once he gets arrested. And why should he lose that right. He has every chance to use the evidence to prove him not guilty. These inhumane treatments don’t make any sense. And the misconception about the unlimited power has to be cleared to the police officers.
AIM OF STUDY
- To analyze the concept of custodial death as a social evil.
- To analyze the violations of human rights in the cases of custodial deaths.
Does Custodial death amounts to the violation of Human rights.
Researcher have adopted a doctrinal method. The research for this paper has been conducted through primary and secondary sources of information such as Statutes, Case laws, Journals, reports, etc.
Findings of research paper are supported by the findings of Indian study done by Jawale SM, Bhise SS and Wagh RR, Work. Importance is given to health facilities. Hygiene is ignored in jails which eventually leads to further diseases to the people under custody.
Findings of Indian study done by MS Siddiqui provides clear data on the custodial deaths and their causes by grouping them under gender, religion and mannerism.
The research is also supported by the study conducted by Sankar Seen, P.S.V. Prasad, A K Saxena where the consequences of how Custodial deaths are happened and what can be done to solve such crime is mentioned. The research by Shree Baidyanath Mukherjee lacks clear explanation about the torture. And in this research, it has been included to give an appropriate picture of Custodial deaths.
The arbitrary usage of power is the main reason for Custodial deaths in India.
Custodial death can be any form of torture or inhumane treatments by the police officers which might occur during any time in the process of investigation or interrogation. The prisoners or people in custody are entitled to the fundamental rights. Any kind of violence cannot be practiced just because they are in custody as an accused. They cannot be deprived of the basic human rights exception to the people whose rights are curbed by the court. The term custody further sub heads into two.
One is the Police custody where the information is lodged by the police about the crime then the police officer takes the suspected offender in custody in order to prevent him from commenting on offensive acts then the suspect is brought to the station. This kind of detention in a Police station is known as Police custody.
The other one is Judicial custody where the suspected offender is sent to jail by the orders from
the Magistrate. Here he can either be sent to jail or taken under Police custody by the orders of
A person can be kept in custody until the case he has been involved in is tried in the Court. If the death of the person takes place who is in custody due to the inhumane treatments even before the court has given its verdict, then it amounts to the violation of human rights.
The role of police officers is an important one for ensuring safety. But their powers are limited as even they come under law as the citizens are. Violation of law should be held liable if committed offences are same in nature. But the scenario is totally different. The police officers easily escape from the charges and conviction under the name of self-defense. These suspects who are innocent ones are killed brutally and zero remedies are given to them.
CASES OF CUSTODIAL DEATH IN INDIA
- D. K. Basu v. State of West Bengal.
DK Basu, the chairman of the legal aid committee had written a letter to the Supreme Court of India addressing the issue about the custodial death. The court issued orders to all the states where they got responses from several States. Certain issues were raised regarding the arbitrariness of arrest by police officers, increase in custodial death, and asking about to issue certain guidelines for arrest. Petitioner submitted his contentions that such physical harm should be avoided as it is against the law and submitted that there is a need for a civilized country and some steps to be taken to eradicate such kind of violence. Respondent submitted his contentions by showing the fact that everything is normal in their states and showed few guidelines where there were no deaths.
The court gives the judgement as the rights are being violated by the state and certain remedies must be given. The right to life and liberty also give the right against torture and assault by the state functionaries. It was mentioned that a person cannot be arrested without stating him about the reason for the arrest. It was of the opinion that it was one of the worst crimes that is going on in a civilized country and it needs to be stopped. The prisoners are not shed off with their right to life and certain guidelines were imposed.
D. K. Basu’s guidelines (procedures and requirements for the police or other agencies to follow during arrest or interrogation)
1. The officer who is incharge of interrogation must wear a clear identification and designation label. the records of the arrested person must be registered.
2. The memorandum that is prepared at the time of arrest must be witnessed by a family member of the arrestee or any person from the locality with the arrest is made. It should also be signed from the detainee and information off time and date must be mentioned.
3. Arrested person has a right to have a friend or relative of his to be informed that he has been arrested.
4. The police should notify the time, place of arrest to the person living outside the city district legal aid organization and station.
5. The detainee must be aware of his right to inform someone about the arrest.
6. Details of place of arrest and the name of his friend who has been informed about the arrest has to be mentioned in the case diary.
7. An arrested person should be examined about the injuries free existed in the body and the same has to be recorded. The inspection memorandum must be signed by both the officer and the detainee.
8. Medical examination has to be conducted every 48 hours
9. All the copies of documents have to be sent to the magistrate for the purpose of registration.
10. Detainees may also be allowed to meet the lawyer but not throughout the interrogation.
11. Police control rooms to be provided at all the district and state officers and arresting officers should inform about the arrest and the place of custody of the arrest within 12 hours after the arrest and must be displayed on the notice board.
- Harbans Kaur v. Union of India.
The person was called to the police station by the constable since then the whereabouts were not known to anyone. It was alleged that he was kept in unlawful custody. The family members of the person approached court by filing writ petition of habeas corpus and claimed for the compensation. The Supreme Court was of the opinion to start an enquiry and find out whether the petition was beaten in the police custody which led to his death amounting to the custodial death. whether the High Court was of the opinion that it is irresistible that the officers have attempted to destroy the evidence in order to save the real offender. they tried to create a doubt that the person was in the criminal trial and even the challenge of the accused was faked in the eyes of the public. The High Court was of the opinion that the record of the police station has to be examined thoroughly in order to get justice for the person and the officer who has been found guilty of misconduct or negligence which led to the death of the deceased while he was in police custody.
- Joginder Kumar v. State of Uttar Pradesh
The honourable Court has issued guidelines mentioning the rights that are inherent in Articles 21 and 22(1) of the Constitution and this has to be recognised and protected.
It mentions that the police officer should inform the person about his arrest. and the entry should be made in the diary regarding who was informed of the arrest. This protection is supported by Article 21 and 22(1) and enforced strictly. It was also ordered that it’s the duty of the magistrate before whom the person was arrested has to be produced, in order to satisfy himself that all the mentioned requirements have been compiled with.
- Yashwanth and Ors. v. State of Maharashtra.
The Hon’ble Supreme Court on 2018 September 4 has extended the jail terms up to 7 years which was only for the term of three years. The conviction of nine Maharashtra cops in connection with a 1993 custodial death case was upheld. Reportedly, a bench of Justices NV Ramana and MM Shantanagoudar upheld the order and said that the incidents where police try to deteriorate people’s hope in the judiciary. While enhancing the prison term of the cops, the apex court said, “With great power comes greater responsibility,”. The police personnel were found guilty under Section 330 of the Indian Penal Code which involves voluntarily causing hurt to extort confession or to compel restoration of property.
- Tamil Nadu Custodial death case (father & Son)
The victims namely Jayaraj and Bennix were arrested by the police for not following the lockdown norms. They had kept their mobile shop for little longer hours. They were brutally tortured by the Police officers over 6 hours continuously. The officers wanted to teach them the lesson on how to behave with the cops. the medical report revealed that they were severely torture even the blood was splash down the police station walls. The CBI I said that the FIR was false. And both the victims didn’t violate any lockdown norms. Jayraj was a diabetic patient. He pleaded with the officers that he could not have such kind of injuries. The police started beating them in a serious way where the skin was peeled off. This was one of the versus crimes in today’s day. The victims died after the next day. This kind of harsh punishment is against human rights. no person can be beaten by the police officers do they have the power it cannot be used arbitrarily. Section 176 of CrPC was amended. And a special provision has been created for Custodial death investigation.
The above mentioned case laws explain how custodial deaths are happening from a very long time and how they violate the right to life. A human who is mostly a suspect has been tortured to a severe level. It proves the abuse of power that has been practiced in society and most of the time such social evil is ignored due to lack of awareness about the rights that have been guaranteed by our constitution.
METHODS OF TORTURE
The word ‘torture’ is derived from the Latin word ‘tortus’ which means to twist or to torment. It is an act of intentionally causing severe pain either physical or mental by a person to another as a punishment. The purpose of torture in law is done in the process of interrogation in order to get leads in cases. There are certain divisions in the process of torture. The last stage is third degree technique. The term torture can extend to any inhumane level which cannot be examined.
Hammering of nails in the body
In Bihar Custodial death case nails were hammered in the soles, writs and thighs of the victims Gufran Alam and Taslim Ansari who were caught in connection with the motorcycle theft case. They were severely injured which caused death.
Burning of leg
A school principal in Kashmir dies in custody who was arrested in the militancy related case. He got the bail, but the police officers put him behind bars for 20 days. There was no evidence of him involving in such acts. He was tortured in police custody which caused his death.
Hitting the soles
In Kerala Custodial death case The victim Rajkumar was arrested by the police in a financial fraud related case. He was subjected to third degree torture. It was claimed to be natural death but the medical report showed multiple injuries, which included fracture, contusion and bleeding. It was alleged that he was tortured by the use of chilli powder. Such cruel treatment has caused his death.
Hitting the private parts
In the case of Haryana Custodial death The victim Brijpal Maurya was hit to the private parts which has caused his death.
Stabbing with Screwdriver
In Uttar Pradesh Custodial death case the victim Pradeep tomar was arrested by the officers in charge of the murder. The officers took him under custody without informing the superior officer. He was beaten up where his body turned blue, and marks of beating were present on arms.
Victims namely Yadav Lal Prasad (Punjab) and Monu (UP) were tortured by giving electric shocks.
Women are targeted for abusing them sexually in custody. Most are raped, and tortured by plucking nails.
RIGHTS OF PERSON IN CUSTODY
1.Right to Silence
This right is universally applicable. The meaning is that courts or tribunals should not conclude the suspect as guilty of crime if he refuses to respond to the questions that have been put to him by authorities. The originals of this principle have been penned down by the Justice Malimath Committee that it is an important factor to refuse answering the questions put forth and accuse a person in absence of charge. It was of the opinion that the right to silence is a must in an autocratic system of government where there is lack of protection to the accused and anyone can be charged arbitrarily. This is the aspect covering fair trial as it is the basic of Indian criminal law system. And any statements made to the police are not admissible in court of law. The confession should be forced. Right to silence is mainly concerned about confession. Breaking of silence by the accused can be before a magistrate but should be voluntary and without any duress or inducement. To check the truth of the facts and the liability magistrate has to take several precautions. Right to Silence and Right against self-incrimination are provided to the accused from the Indian legislation.
Indian Constitution guarantees every individual the right against self-incrimination under Article 20(3). The right to silence was established in the case of Nandini Sathpathy v. P. L. Dani where it was held that no forceful confessions had to be taken and an accused had the right to remain silent during the process of investigation. The scientific process such as brain mapping, lie detector test and narco analysis was held to be a violation of Article 20(3) in the year 2010.
2. Right to be informed about the grounds of arrest.
According to Section 50(1) of Cr.P.C a police officer is bound to inform about the arrest in detail regarding the offence that the person has done. According to Section 55 of Cr.P.C. A written order has to be obtained by the senior officer if in case the subordinate officer is arresting a person. If in case the return order is not present such arrest would be illegal. If the arrest is made with a warrant, then the officer has to inform about the arrest and the grounds of the arrest and even the warrant can be shown to the arrested person. it’s this kind of details is not informed to the arrested person then it will become unlawful. Indian constitution has provided safeguard for the arrested person under Article 22(2) where it says a person cannot be arrested or kept in custody without being informed about the grounds of the arrest and he should be granted the right to consult an attorney of his choice.
3. Information regarding the right to be bailed.
Under section 50(2) Cr.P.C. a police officer when arresting a person without warrant who has been accused of committing a bailable offence then he has the right to inform him about it. He can be released on bail by arranging some sureties on his own.
4. Right to be taken before a Magistrate without causing any delay.
When a police officer arrests a person with warrant or without warrant after you are as he has to present him before the magistrate without any delay within the period of 24 hours. and he should be kept only in a police station until the arrested person is brought before the magistrate. These contents are mentioned in section 56 and 76 of Cr. P C.
5. Right of not being in detention exceeding 24 hours without judicial scrutiny.
The police officer should not keep a person in custody for a time period exceeding more than 24 hours without reasonable exceptions which can be the absence of special order of a magistrate and the journey time from the place of arrest to the place of magistrate Court. Article 22(2) mentions that a person who is arrested shall be produced before the magistrate within the period of 24 hours.
This role has been mentioned due to the prevention of arrest for the purpose of extracting any kind of confessions as a means for compelling people to give information. The other purpose was to prevent police stations from being used as prisons. And to afford early records the judicial officer independent of the polish on all the questions of bail aur discharge
In a case of Khatri(II) v. State of Bihar, the Supreme Court held that police authorities should make sure that a person arrested should be produced before a magistrate within the 24 hours of the arrest. And if this requirement is disobeyed then the police officers are held liable for wrongful detention.
In a case of Poovan v. Sub- Inspector of Police It was said that if a complaint is received by a magistrate that a person is being arrested and has not been produced before a magistrate within the 24 hours of time then he is called to check whether the allegations are true or not and under whose custody he was. if the officer denies the nearest then the magistrate can make an enquiry into the issue and pass the appropriate orders.
6.Right to fair and speedy trial
Right To A Fair Trial-
Indian constitution guarantees under Article 14 about the right to equality before law. And CRPC provides the right to fair trial, where it must be me and open court trial. This provision was designed in the view that the convictions should not be done in secret. Accused have the right to have a case to be tried in another court if he requests and moves such application for transfer of his case in the court. He has no right to choose the court where his case has to be tried. The Constitution under Article 14 guarantees the right to equality before the law.
Right to A Speedy Trial-
The Constitution guarantees the right of speedy trial to the accused. It is not mentioned separately in constitution but has been interpreted by the Hon’ble Supreme Court of India in the judgment of Hussainara Khatoon. This judgment mandates that an investigation in trial should be held “as expeditiously as possible”. In all summons trials i.e. cases where the maximum punishment is two years of imprisonment, once the accused has been arrested, the investigation for the trial must be completed within six months or stopped on an order of the Magistrate, unless the Magistrate receives and accepts, with his reasons in writing, that there is cause to extend the investigation
7.Right to consult an attorney.
Article 22(1) of the Constitution guarantees that the person who is arrested should not be denied the right to consult the attorney of his choice. Further, as has been held by the Supreme Court that state is under a constitutional mandate (implicit in article 21) to provide free legal aid to an indigent accused person, and also the state has an obligation to provide free legal aid which can also comment from the first time produced before the magistrate and also when he needs it. Section 50(3) also provides that any person against whom proceedings are instituted under the code may be defended by a pleader of his choice. The right of an arrested person to consult his lawyer begins from the moment of his arrest. The consultation with the lawyer may be in the presence of a police officer but not within his hearing.
8.Right to be provided with free Legal Aid
In Khatri(II) v. State of Bihar, the Supreme Court has held that the state should mandatorily provide free legal aid to the accused (implicit under Article 21). The Constitutional obligation to provide legal aid does not arise only when the trial commences but also attaches when the accused is for the first time produced before the magistrate, as also when remanded from time to time. However, this constitutional right of an indigent accused to get free legal aid may prove to be illusory unless he is promptly and duly informed about it by the court when he is produced before it. The Supreme Court has therefore cast a duty on all magistrates and courts to inform the indigent accused about his right to get free legal aid. The apex court has gone a step further in Suk Das v. Union Territory of Arunachal Pradesh, wherein it has been categorically laid down that this constitutional right cannot be denied if the accused failed to apply for it. It’s clear that unless refused, failure to provide free legal aid to an indigent accused would vitiate the trial entailing setting aside the conviction and sentence.
9. Right to Be Examined by A Medical Practitioner
Section 54 now renumbered as Section 54(1) of CrPC provides that an arrested person can request for the medical check-up on request. When a person is arrested or on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice.
10. Right of The Accused To Produce An Evidence
The accused has the right to produce the witnesses in his defence. After the process examination has the right to produce the witnesses which are on behalf of him or in the favour of m and can produce any written statement which can be recorded. the judge can record this until the prosecution is done. The accused even has the right to produce witnesses in his defence in case of police report or private defence. Section 138 of Indian Evidence Act, 1872 gives the accused a right to confront only witnesses. This right ensures the accused that the opportunity for cross-examination of the adverse witness. Section 33 of Indian Evidence Act says whenever a witness is unavailable for trial, a testimonial statement of the witness may be left out by issuing commission. These testimonial statements can be used as documentary evidence in the successive trials. At the time of investigation the accused or any of the people I want to make a statement is brought to the magistrate so that such confessions and statements can be recorded. Confession and statements by accused made to the police are absolutely excluded under Section 25, Evidence Act.
Article 51(c) of the Constitution has ordered about the obligation to recognize the International regulations and the principles that the Parliament has the power to enact laws for the implementation of international conventions by virtue of Article 253 read with Entry 14 of the Union List in Seventh Schedule of the Constitution.
International Covenant on Civil and Political rights (ICCPR)
Article 6 of ICCPR norms says that no person should be subjected to the torture, inhumane treatment or cruel treatment. Such punishments should not be practiced.
Universal Declaration of Human Rights (UDHR)
Under UDHR norms it is ordered that no one should be subjected to arbitrary arrest and detention. And every person should be entitled for fair and public hearing.
Indian Penal Code 
Under the Indian Penal code of 1860 it is mention that a police officer has more than the person who has respect and he was under the police custody then he would be punishable under article 3 not to of IPC
If a police officer has committed an offence under 304 the person who was in the custody, then he would be punished for culpable homicide not amounting to murder.
a police officer is believed for causing death by negligence then you are punished under 304 A IPC.
A person has committed suicide in the police station during the process of interrogation when she is in the custody then the officer in charge of that particular interrogation would be convicted if it is found that he has abetted the commitment of suicide under Section 306.
Police officer has caused her to know that he would be punished under Section 303 of IPC.
a police officer has caused previous hearings with knowledge that that hurt will call him great pain or injury that he would be tried under Section 331 of IPC.
if the police officer has committed the crime of wrongful confinement then you will be punished under 342 of IPC.
Criminal Procedure Code
a magistrate has an obligation to enquiry in a case if a person is found dead in custody under Section 176 (1) of CrPC.
If a person dies or disappears or a woman has been raped in custody of a police officer, then a magistrate has to enquire into the particular case under Section 176 (1A) of CrPC.
National Human Rights Commission
Magistrate has to enquire when a matter has come to him without any delay in the case of custodial death.
a magistrate has to visit the place of the occurrence to acquittance within the facts on the ground.
A magistrate has a obligation to ensure if the information has reached to the close relatives of the victim
majestic Hasan duty to start the enquiry about the facts of the case, the circumstances of the death, the cause of the death, the manner of the death and how the sequence has taken place in the death.
A magistrate has to examine and verify the records, the postmortem report, the police report.
The magistrate has an obligation to examine the eye witnesses of the family members of the victim and the officers who have kept him in custody.
The Evidence Act
The confessions which are done with the fear or threat or the any kind of promise it has to be considered as irrelevant in the criminal proceedings
Confessions which are made to the police officer during the investigation or interrogation shall not be proved against an accused
Confessions which are done by the accused when he is in the custody of the police cannot be proved against him.
Indian Police Act
Sections 7 and 29 of the Act orders for dismissing a penalty for suspension of police officers who are negligent in the discharge of their duties for unfit to perform their duty. These sections highlight the violation of constitutional and statutory provisions by police officers.
COMPENSATION FOR THE VICTIM
compensation to the victim is the payment of monetary assistance in order to replace the loss or injury that the victim has got to another person or any kind of medium. The compensation helps as an assistant to the sufferings either physically or mentally. Section 357 of CrPC orders the payment of compensation to the victims. Under the victim compensation fund the compensation for the victims is allotted. DLSA pays the compensation for the victim under Section 5 of the scheme victim compensation fund. The DLSA examines a particular case or a trial and decides the amount of compensation to be given and later it gets deposited to the nationalized bank. 75% of the amount will be deposited for the period around three years. And around the 25% will be e allotted for the initial expenses of the victim or his family. 80% of the amount cannot be drawn if a victim of the family member is a minor. You can only draw it when he turns major whether an exception is there for medical or educational expenses. Compensation is to be provided by the legal services authorities on the recommendation of quotes it can be given either in the period of investigation or at the final trial.
Compensation of victims is an important aspect with the victim that gets replaced for the loss and the injury has caused him. In the case of custodial death, the victim is causing loss from the state functionaries. he or she has to get the proper amount of compensation. In some of the cases the crime won’t be allowed for judicial scrutiny and would be disposed of the matter by giving a minimum amount. This kind of act has to be restricted and the victim has to get proper compensation as it is his right.
SUGGESTIONS AND RECOMMENDATION
Following are the suggestions that the researcher proposes in order to ensure the rights to the persons in the custody.
- Recording the whole investigation procedure
- Installing CCTV cameras in police stations, especially the place where investigation takes place.
- Proper first aid to be given to the detainee when needed.
- Providing health facilities in case of emergency.
- Police officers should be ordered not to use any dangerous weapons.
- Usage of scientific method instead of inhumane activities to get the leads in case.
- If Custodial death takes place, then the officers must be charged for the offence committed.
Right to life is an important fundamental right that is guaranteed under our constitution. This right cannot be snatched if a person is in custody. Every year we see custodial deaths happening due to various reasons might be natural and most of the time natural. Some cases are highlighted, some are ignored. This in human treatment has to be banned and the scientific approach has to be adopted. Proper education has to be given to the police officers about the human rights of the person in the custody. Action has to be taken against the officers who are abusing their powers. The researcher has discussed about the Custodial death that has happened in India, explaining about the torture methods that has been practiced and how it has violated human rights since so long which are guaranteed under Indian constitution. There is need to enact the anti torture laws in India to provide protection to the suspects.
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 supra note no. 14.
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 The Indian Evidence Act, 1872, No.1, (1872) (India).
 The Police Act, 1861, No. 5, (1861) (India).
 supra note 12.
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