CUSTODIAL DEATHS

Reading time : 12 minutes

INTRODUCTION

Custodial death is the alarming issue for a long time in our society.it is one of the worst things that can shatter one’s fundamental right. these crimes often go unpenalized. According to reports, five deaths are reported everyday in police custody for a decade now. In 2020 alone, till July National Human Rights Commission (NHRC) reported 914 deaths out of which 53 of these in police custody. Police, who has to be saviours to the public are breaking the laws and orders because of which citizens of India are losing trust on them.

What is custody death?

The term “custody” means the legal rights or the protective care of someone when a person is arrested. This custody is of two types namely police custody and judicial custody. [1] When following the receipt of an information/complaint/report by police about a crime, a police officer arrests the suspect involved in the crime reported, to prevent him from committing the offensive acts further and brings that suspect to the police station, this detention in the police station is known as police custody. In this custody the accused is kept in cell. When a suspect is kept in jail by the order of the concerned magistrate, he is said to be under judicial custody. In simple words, the suspect is in the custody of the magistrate. Now looking into custody death. Custody death is defined as the death of a person due to any form of torture or cruel, inhuman or degrading treatment by the police officers, whether it occurs during investigation, interrogation or otherwise. It is perhaps one of the horrible crimes in a civilized society governed by the rule of law. Even though the honourable Supreme court of India, the National Human Rights commission and The Constitution of India restricts these kinds of crimes, police officers failed to obey them. It is also to be noted that a person basic fundamental right is not infringed when he/she is in custody unless restricted by law.

DIFFERENCE BETWEEN CUSTODIAL DEATH AND ENCOUNTER

Encounter killings can be considered as custody death but in reverse they are not considered as same. The word ‘encounter’ is considered as killing of an accused by the police officers in the name of self defence whereas custody death is the death of an individual by torture and ill treatment. As of recent data on encounter killings record shows that there have been 6145 encounters in India out of which 119 suspects died and 2,258 have been injured. While the encounter by the police officers is applauded and welcomed by the public the same of custody death by the police are opposed. The public response on these actions enormously structures them. This appreciation of the public on the encounter desires police officers to take the law on their hands and executes them on their own way. This clearly shows that the common public including the educated ones and the police officers failed to understand that whether it be encounter or custody death the police have no rights to deprive the individual rights.  As on 2017-18 the Uttar Pradesh state recorded large number of encounters, the NHRC issued a notice to that government stating that “It is the solemn duty of the police force to protect the people and not to create atmosphere of fear under the garb of dealing with crime. Any death caused in an encounter, if not justified, would amount to an offence of culpable homicide,”.

VIOLATIVE OF HUMAN RIGHTS

There were various guidelines issued by the Supreme court and the National Human Rights Commission regarding the reduction of custody death but the failure of state and centre government to follow them resulted in the increase in deaths. Even many officers of NHRC and supreme court judges slammed the government on not taking this issue seriously yet there is no proper step taken. Fresh guidelines where issued by the human rights commission in September 2020 which is not yet made public regarding the intimation of custodial death which revised the 2010 order where cases which involves specific allegations of an offence or the reasonable speculation of criminal activity only then the inquiry can be undertaken by the court, because of which most of the cases are reported as natural deaths or sickness this automatically makes the police officers to set free of the crimes even if the death is caused by cruelty now that this revised guidelines suggests that every custody deaths including the deaths caused by illness or naturally shall conduct metropolitan magistrate or judicial magistrate, this investigation by the magistrate can obviously help finding out the officers killing innocents and punish them accordingly. Various guidelines are also issued by the national human rights commission while conducting judicial enquiry in case of custodial death.

[2]The following regulations are as follows:

  • Magisterial enquiry be conducted at the earliest without undue delay.
  • The Enquiry magistrate should visit the place of occurrence to the acquaintance with the facts on ground. During the visit to the scene of crime, the Enquiry Officer should make an attempt to identify natural witnesses who are likely to have been present at the scene of crime.
  • The enquiry magistrate must ensure that all the information and the witnesses reach everyone especially the close relatives of the deceased
  • The magisterial enquiry should cover aspects, such as; the circumstances of death, the cause of death, the manner and sequence of incidents leading to death, etc.
  • The enquiry magistrate should examine and verify records, such as; inquest report, post mortem report, the final cause of death, medical treatment records, etc.
  • The magistrate should examine the family members and other relatives of the deceased, eye-witnesses, prison officials, co-prisoners, etc. 

LAW RELATED TO THE OFFENCE OF CUSTODIAL DEATH IN INDIA

The laws that deal with custody death and custody violence are listed below

INDIAN PENAL CODE 1860

  • A police officer causing grievous hurt to the suspect to extort confession or compel them in restoration of property shall be punished with imprisonment which may extend to ten years and also will be liable to fine under section 331 of IPC for the offence of ‘violence’
  • Section 330 & 348 of IPC also punishes the police officer with imprisonment for torturing the accused for wrongful confinement to extort confession
  • Police officer carrying out murder of an accused person in custody shall be punished with death and be liable to fine under section 302 of IPC for the act of ‘murder’
  • Under section 304 of IPC, a police officer shall be punished for ‘culpable homicide not amounting to murder’ if custodial death is caused by them
  • The provisions of Section 304A of IPC also punishes law enforcement officers with imprisonment if the death is caused by negligent act or amounting to culpable homicide
  • If a suspect commits suicide and if it is proved that a police officer abets that suspect to commit suicide then the officer shall be punished with imprisonment under section 306 of IPC

CODE OF CRIMINAL PROCEDURE 1973

  • Section 76 of CrPC enacts that a person arrested must be provided before the court without any delay, further if any delayal occurred it must not exceed twenty- four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate’ s Court.
  • In section 176(1) of CrPC “a magistrate, who is empowered to hold inquests with respect to an unnatural death, may hold an inquiry into the cause of death in addition to the investigation held by a police officer.”
  • In section 176(1A) of CrPC [3] “When a person dies, disappears or rape is committed on any woman, while such person or women is in the police custody or any other custody authorized by the Magistrate or the Court.” An inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence has been committed, in addition to the inquiry or investigation held by the police.
  • The magistrate holding an inquiry or investigation under section 176(1A) of CrPC, shall ‘within 24 hours of the death of a person, forward the body for examination to the nearest civil surgeon’.[4]

INDIAN EVIDENCE ACT 1872

  • Any confession made by a suspect to the police officer cannot be proved against him under section 25 and 26 of the evidence act. The reason for enacting such provision is to put an end to the professional misconduct of the police officer to extort confession and also to avoid the risk of wrong confessions being admitted.
  • Under section 24 of the evidence act, A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise

RIGHTS PERTAINING TO THE PERSON IN CUSTODY

Article 20 of the Indian constitution provides certain rights to the accused are enumerated below:[5]

  1. No person shall be convicted of any offence except for violation of the law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence
  2. No person shall be prosecuted and punished for the same offence more than once.
  3. No person accused of any offence shall be compelled to be a witness against himself

Article 21 specifies certain rights to suspect are listed below

  • Having a suspect in custody for an indefinite period and if the police officer is unable to find any evidence or the court is unable to prove that the accused is guilty then the time he/she stayed in the prison is violation of one the most important right in article 21 which is right to life and liberty[6].
  • Solitary confinement is a dreadful punishment where the suspect is breached to mingle with co-prisoners, talk or move around this is violated under article 21 unless such punishment is backed by the law[7].
  • Providing free legal aid to the needy and poor is the assured legal right for an individual under this article 21 of the constitution and it is states responsibility to provide free legal services for the suspect.

The procedure for giving free legal services is put forward in section 12 of the Legal Services Authorities Act 1987 which lists out to whom the free legal aid can be provided, which are as follows:[8]

a member of a Scheduled Caste or Scheduled Tribe, a victim of trafficking in human beings or beggar, a women or a child, a person with disability, a person under circumstances of undeserved want such as being a victim of a mass disaster, ethnic violence, caste atrocity, flood, drought, earthquake or industrial disaster, or an industrial workman, or a person in custody, including custody in a protective home.

  • The supreme court of India declared that the “Third degree method” or inhuman treatment by the police officer in order to extort confession is violative under article 21 of the Constitution[9].
  • ‘Right to a speedy trial’ is a fundamental right and is implicit in the guarantee of life and personal liberty enshrined in Article 21 of the Constitution. This right is available to the suspect in all the levels of their enquiry[10].

Article 22 of the Indian constitution provides protection to person in custody which are enumerated below:

  • Clause 1 of article 22 provides the right to the suspect to be informed as early as possible regarding the reasons for the arrest also it gives right to consult to the legal practitioner of his own choice
  • Clause 2 states that the accused must be brought before the magistrate within 24hrs of such arrest
  • Clause 4 to 7 of the article 22 provides necessary rights to the individual if he/she is arrested under the law of preventive detention[11]
    • No law providing for preventive detention shall authorise the detention for more than three months unless the advisory board finds out that there is sufficient cause of detention before the expiration of the period
    • Clause 5 of article 22 authorises the authority the right to communicate regarding the grounds of the order that has been passed on such person and also afford the earliest opportunity for making a representation against the order

COMPENSATION FOR THE VICTIM

The Hon’ble supreme court has ordered that the courts of India have the power to grant compensation if any of the fundamental rights of citizens are abused by any law enforcement officers. Therefore, the court can order the state to provide compensation to the victims, family member of the victim or the closest relative if any offence is caused by the state. the reason for compensation by the state is to apologize the victim for the unethical behaviour of the officer and also help the families of the victim to continue their living.

 The cases where the compensation has been awarded by the court are;

  • In one of the landmark custodial death cases happened in 1985,[12] where a person (Kashinath Nayak) in Orissa was tortured badly in custody by two police officers was found death while he was on the way to hospital. The apex court punished the officers by three years of imprisonment and awarding Rs.3lakh compensation to the victim family. Later, last year the case was appealed again in Supreme court for reducing the years of imprisonment but the judges rejected the appeal and increased the compensation to 10lakhs.
  • Another landmark case which made the whole country to look back was Jeyaraj Fenix case happened last year on June in Tamil Nadu, it was the most horrible police brutality case where the father and son duo was tortured and killed in the police custody. This particular case sparked the nationwide outrage with #JusticeforJayarajAndFenix trending on social media. Though this case is still under trial the victim family is compensated by that state government of Rs.10Lakh and has promised to provide government job for a family member according to their eligibility[13].
  • People’s Union for Democratic Rights v. Police Commissioner, [14]

“A labourer was taken to the police station for doing some work. He was severely beaten when he demanded wages, which lead to his death. The Hon’ble SC held that the State is liable to pay compensation and accordingly directed the government to pay Rs. 75, 000/- as compensation to the family of the deceased.”

CASE LAWS RELATED TO CUSTODIAL DEATHS

DK Basu vs State of West Bengal (1997 (1) SCC 416):

In this case eleven guidelines were issued by the supreme court to be followed by the central and state government in all cases of arrest and detention. [15]These guidelines are popularly known as “D.K Basu guidelines” and are listed below;

  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 with their designation.
  2. The police officer carrying out the arrest of a person must prepare a memo of arrest and it must be attested by at least one witness.
  3. A friend or relative or another person, known to the arrestee or has an interest in his/her welfare shall be informed as early as possible about the arrest.
  4. If the next friend or relative of the arrestee lives outside the district or town, they must be informed by the police through ‘legal aid organization’ telegraphically, within 8 to 12 hours during the arrest.
  5. The arrestee must be instructed about the right to have someone informed about his/her arrest or detention, as soon as he/she is put under arrest or is detained.
  6. An entry must be made in the diary regarding the arrest of the person.
  7. On request of the arrestee, he/she should be examined at the time of the arrest.
  8. The arrestee should be subjected to medical examination within 48 hours during his detention.
  9. All documents including the memo of arrest should be sent to the concerned magistrate.
  10. The arrestee may be permitted to meet his lawyer during interrogation.
  11. A police officer causing the arrest shall provide ‘information regarding the arrest’ and ‘place of custody’ of arrestee within 12 hours of affecting the arrest to the police control room.

Yashwanth and Others VS State of Maharashtra

This case held in 1993 where 9 police officers rigorously tortured the accused in which he died.[16] These officers of Maharashtra were found guilty under section 330 of Indian Penal Code (IPC). On September 4, 2020 this case was upheld in the Supreme court where the judges extended the imprisonment from three years to seven years each. The justices in this case also noted that the punishment must be enhanced so that the police officers think twice before committing a offence. The court also said “With great power comes greater responsibility,”.

Joginder Singh vs State of Uttar Pradesh

In this case the petitioner Joginder Singh was called to the police station by the officer and was regarding some enquires and was assured that he will be released the next day. But he was not released the next day was the police officers dislocated the location. Further he was under detention for five days and he was released. The family members of Joginder Singh filed a case against the police officers for not telling the proper reason for the detention and also for dislocating from station. The court stated that no person can be arrested and detained just because the police officer has the power to do. The officer has to have proper justification for the arrest without being able justify the reason the officer has no right to arrest a person as it can harm the self esteem of the person on keeping in jail for no proper reason behind it. And these rights are enacted in Article 21 and 22 of the constitution, further the supreme court has listed some guidelines in order to effectively protect the fundamental rights of the citizens which are enumerated below:[17]

  • An arrested person being held in custody is entitled, if he so requests to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told as far as is practicable that he has been arrested and where he is being detained.
  • The police officer shall inform the arrested person when he is brought to the police station of this right.
  • An entry shall be required to be made in the diary as to who was informed of the arrest. These protections from power must be held to flow from Articles 21 and 22(1) and enforced strictly.

J. Prabavathiamma vs State of Kerala & others

In this case after a decade of investigation the two police officers were awarded death sentence by a CBI court for brutally killing a scrap metal shop worker with a big rod in Thiruvananthapuram. [18] While sentencing the two, Judge J Nazar had said: “This is a brutal and dastardly murder by accused (number) one and two… The acts of the accused persons would definitely adversely affect the very institution of the police department… If the faith of the people in the institution is lost, that will affect the public order and law and order, and it is a dangerous situation.

CONCLUSION

The main reason for having a custody of a suspect is to protect him/her no matter if he is a criminal or innocent. Just because there is a huge population in our country a value of human life cannot be taken granted. Furthermore, the main idea for arresting a person is to correct him and make him realise his fault so it is necessary to provide proper health care system and a good space. The police officers are not law makers they are just a group of people guarding the normal citizens. The guardians themselves violating the human rights are making the public fear to approach them further. According to data, most of the custody deaths reported are poor and financially unstable people. there are also many numbers goes unnoticed as the police officers got several ways to escape from their offence. Most of the death are reported as suicide but the question is whether the suspect himself committed or he is forced to do so. There are several debate going time to time on police atrocities and various guidelines are also issued by the supreme court in order to curb this violence but yet the state government are lethargic in this thing. some of the ways few solutions to stop this kind of deaths include: there should mandatorily be a CCTV camera fixed in every police station and lockup room, police officers should be giving a proper training on avoiding ‘third degree method’ and imposing the importance of human life, Good health care system should be provided to every suspect regardless of if he/she is sick, and if any suspect was found depressed and tried committing suicide then a therapy session must be set up. These are few ways we can follow to reduce the death rate in future. And finally, every public authority must know their limit of powers and exercise it accordingly so that there wouldn’t be any misuse of power and the people won’t lose their trust on the legal system.

REFERENCES:

[1] https://districts.ecourts.gov.in/sites/default/files/fct.pdf  [2]https://nhrc.nic.in/sites/default/files/Guidelines_conducting_Magisterial_Enquiry_in_cases_of_CD_or_police_action.pdf

[3] Section 176(1A), The Code of Criminal Procedure, 1973 (Inserted vide ‘The Code of Criminal Procedure (Amendment) Act, 2005.’ 

[4] Section 176(5), The Code of Criminal Procedure, 1973.

[5] Article 20(1), The Constitution of India, 1950

[6] Sanjay Chandra v. C.B.I, AIR 2012 SC 830.

[7] Sunil Batra (No. 1) v. Delhi Administration, AIR 1978 SC 1675.

[8] https://nalsa.gov.in/acts-rules/the-legal-services-authorities-act-1987

[9] Kishore Singh v. State of Rajasthan, AIR 1981 SC 625.

[10] Hussainara Khatoon (No. 1) v. Home Secretary, State of Bihar, AIR 1979 SC 1360; Kadra Pahadiya v. State of Bihar, AIR 1982 SC 1167.

[11] Article 22(4), The Constitution of India, 1950.

[12] https://www.newindianexpress.com/states/odisha/2021/feb/13/1985custodial-death-sc-hikes-orissa-hcs-compensation-to-rs-10-lakh-2263483.html

[13] https://www.indiatoday.in/india/story/tamil-nadu-custodial-deaths-justice-for-jayaraj-fenix-tuticorin-protest-all-you-need-to-know-1693158-2020-06-26

[14] (1989) 4 SCC 730.

[15] D.K. Basu v. State of W.B., AIR 1997 SC 610.

[16] https://lexpeeps.in/yashwant-and-others-v-state-of-maharashtra/

[17] 1994 SCC (4) 260.

[18] CRL. R.P.2902 OF 2007.

Author: NANTHIYA.N, IFIM Law college

Editor: Kanishka VaishSenior Editor, LexLife India.

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