This article has been written by Sudhanshu Upadhyay, pursuing B.B.A.,LLB. (H) from Amity Law School, Amity University Chhattisgarh
Custodial Deaths: A Curse to Humanity
Custodial Deaths is one of the heinous crimes in the society since the beginning of rule of law. There are various incidents in which people die in the custody of police and no one is accounted or held responsible for the death of the person. Does a citizen give off his fundamental right to life, the moment police arrest him? Or is the policeman entitled to take a life of person except according to due process of law? The answers, indeed has to be a vehement NO. Custodial Deaths, unlike encounter killings, does not drew the attention of the concerned authority and judiciary, also complaint of such violence and abuse is not given proper attention by the police officers because of their brotherhoods and Intra department relations. There is various incident in which it was found that police records relating to custody and consequent investigation are often manipulated to help the accused policemen. There is urgent need to review the laws concerning the investigation of such custodial deaths and abuses as the very purpose of the law is not achieved under the current legal regime.
The Third Report of National Police Commission observed that nearly 60% of arrests in India were unjustified and unnecessary. These reports were considered and referred to by the Hon’ble Supreme court in its decision in the case of Joginder Singh. Many of the guidelines were included in the statutes, by amending the Code of Criminal procedure by adding Sections 41A to 41D, 50A, 54A, 55A, 60A with the hope that the process of arrest will be more transparent and the arrested person have certain safeguards and remedies in case of ill treatment or abuse. A total of 1530 deaths occurred in police custody out of which 144 deaths were in police custody during the period from April2017 to February 2018. According to a report publish by The Hindu 74.4% deaths in police custody were attributed to torture or foul play and 19.2% were attributable to foul play. Now compare this, with the number of convictions – 385 policemen were charged, 120 cases were dismissed by courts after charge sheets were filed and just eight policemen were convicted during the period 1997 to 2016. While Indians are expressing rage over the recent death of the father and son duo in Tamil Nadu (P. Jayaraj and Beniks), eventually the harsh reality is that one day this story will also die its natural death due to lack of evidences or other tragedies. A case in point is another news, indicating that seven policemen from Uttar Pradesh who were accused of torturing Pradeep Tomar to death last year were exonerated by trial court at Hapur recently, apparently on the basis of statement of the family members of the deceased, stating that the policemen were not involved.
Custodial Deaths or a Staged encounter is nothing less than a cold-blooded murder. What is most concerning, is that the police force which are constituted with the very objective of implementing law and to maintain law and order itself openly flouts the law. And the statutes and provisions inserted to prevent such types of incidents are unable to fulfil the very objective of the law as the accused are exonerated by court on various grounds such as Défense, lack of evidence etc.
The Law Commission in its 113th Report had suggested that the insertion of Section 114 B in the Evidence Act, which in effect was to provide that the court may presume that an Injury to the deceased in the custody was caused by the police officer having custody of that person during that period. Change of Burden of proof was thus advocated. Supreme court in 1995 and in 1997 in D.K. Basu had expressed the hope the government should give serious consideration to such a provision being inserted, but up till now no action has been taken in this regard.
Politicians are also up to some extent responsible for the police brutality and abuse of power which eventually lead to custodial death. The ruling party often tries to supress the voice of opposition rally by using excessive police force like Lathi charge even the lawfully elected person who has taken the oath of the Indian Constitution sometimes gives a statement which justifies the police atrocities and abuse of power for e.g. “ Agar Apradh Karenge thok diye Jayenge” is a statement of the present Chief Minister of U.P. Similarly, the encounter killing of four suspects in Rape and Murder of young veterinarian near Hyderabad was openly praised by various politicians like former Chief Minister of U.P. Mayawati and Akhilesh Yadav, these type of statement built a sense of tolerance in general public with regards to abuse of powers by police and public starts accepting the ill treatment by police.
Independent investigation in a case of custodial death, in the initial stages, is a bigger problem as the police are called to probe against themselves. Supreme court has commented on ties and brotherhood within police the verdict was as follows “rarely in case of police torture or custodial death, direct ocular evidences of the complicity of police personnel would be available. Generally speaking, it would be police officials alone who can explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not pervert the truth to save their colleagues”
To overcome these problem Section 176(1A) of the Code of Criminal Procedure, inserted after 2005 amendment to CrPC.
Section 176(1) CrPC states that 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 the police officer. This is only a general, empowering provision, giving Magistrate the discretion to hold such an inquiry. Another fact to be noted is that such inquiry can be held either by an Executive Magistrate or Judicial Magistrate.
On the other hand, Section 176(1A) is a special provision to deal with cases of death, disappearance or rape in police custody. The provision says that in such cases, the judicial Magistrate or the Metropolitan Magistrate, within whose local jurisdiction the offence has been committed, shall hold an inquiry in addition to the inquiry or investigation held by the police.
Section 176 (5), also inserted after 2005 amendment, mandates that the Magistrate holding such inquiry should, within 24 hours of the death of the person, forward the body with a view to it being examined to the nearest civil surgeon If it is not possible to do so, reasons must be recorded in writing.
Despite the mandatory nature of this provisions, its compliance is highly rare. In January 2020, the supreme court had issued notice on a Public Interest Litigation petition seeking directive to all States/UTs for strict implementation of section 176(1A) that PIL filed by social activist Suhas Chakma stated that out 0f 827 cases of death or disappearance of persons in police custody between 2005 to 2017, judicial inquiry was ordered only in 166 cases i.e. 20% of the total cases
Supreme court also clarified that Registration of FIRs is mandatory in the case of custodial deaths. The supreme court in the decision Lalita Kumari vs State of UP (2014) 2 SCC 1 that registration of FIR is mandatory under section 154 of the code.
To us the word of Justice Krishna Iyer “This country has no totalitarian territory even within the walled prisons the state must re-educate the constabulary out of their sadistic arts and inculcate a respect for the human person a process which must begin more by example than by the percept if the lower rungs are really to emulate, then nothing inflicts a deeper wound on our constitutional culture than a state official running berserk regardless of humans right.”
“Custodial torture is a naked violation of human dignity and degradation which destroys, to a large extent, the individual personality. It is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward- flag of humanity must on each such occasion fly half-mast.”
Custodial deaths is one of the heinous crime the humanity has come across and to stop it the legislature, judiciary and executive are required to work in co- ordination and at the same time Judiciary should also ensure proper implementation of the provisions such as 176(1A
) CrPC and various other preventive measures to ensure that no more violation of human rights are done under a Legal Regime and Rule of Law.
 Joginder Singh v. State of U.P. (1994) 4 SCC 260
 D.K. Basu v. State of West Bengal (1997) 1 SCC 416
 State of Madhya Pradesh v. Shyam Sunder Trivedi (1995) SCC 44
 K.S.R. Dev v State of Rajasthan (1981) 1 SCC 503
 D.K. Basu v State of West Bengal (1997) 1 SCC 416
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