Protection against Illegal Arrest, Detention and Custodial Death


This article has been written by Abhinav Agrawal, pursuing B.A.,LL.B. (H) from Amity Law School,  Amity University Madhya Pradesh


After the death of Jayaraj and his son Benicks in police custody in Tamil Nadu, there is tremendous outrage on the Internet. People are demanding justice for them. During the time of COVID-19, we have also seen the police force come as a Frontline Warrior so it wouldn’t be fair to paint the entire police force with just one brush. But the issue of police power regarding custodial violence is the matter which is needed to be dealt with. There is a need to strike a balance between the needs of police on one hand and the protection of the human rights citizens from oppression and injustice at the hand of law enforcement agencies on the other.

Justice Deepak Gupta in an interview with LiveLaw said that “Torture is an anathema to any civilized society. Any country which ignores any torture whether it leads to death or otherwise cannot call itself a civilized country”. (1)

The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (commonly known as the United Nations Convention against Torture (UNCAT)) is an international human rights treaty, under the review of the United Nations, that aims to prevent torture and other acts of cruel, inhuman, or degrading treatment or punishment around the world. At present 170 countries have signed the United Nations Convention against Torture but India fails to sign the treaty because the reason is that we do not have any domestic legislation which as per India’s state practice is necessary to undertake any international treaty obligations. (2)

India signed the UNCAT in 1997, but now we are in 2020, and yet we are not able to ratify the convention. Which means in almost 23 years we still not able to persuade our parliament to enact a law which is pre-requisite for us to become responsible members of the international legal regime against torture.

In the landmark judgment of DK Basu vs State of West Bengal (AIR1997 S.C. 610) Supreme Court laid down detailed guidelines to be followed by the central and state investigating and security agencies in all cases of arrest and detention. It was observed that custodial death is one of the worst crimes in a civilized society governed by the rule of law. 

In the wake of the said judgment, the Supreme Court laid down basic requirements to be followed in all the cases of arrest and detention till legal provisions are made on that behalf as a measure to prevent custodial violence. But despite these rules, regulations, and guidelines there seems to be a lack of proper implementation. (3)

Incidence regarding torture has largely been an issue, what has gone wrong is the mindset of the majority of people they feel that criminals are deserved to be beaten up. But we must understand that they also have human rights. In DK Basu v. Union of India (supra) It was held by the court that the precious right guaranteed under Article 21 of the constitution could not be denied to convicts, undertrials, and other prisoners in custody except according to the procedure established by law.

According to the National Campaign Against Torture from 2006 to 2016, there were about 1022 reported that in police custody surprisingly only 5% policemen were convicted but in 2019 alone as per the report published by The Hindu there were about 1731 deaths these are the reported figures which lead to death. These are the official figures which are reported. There are many reports which are not even reported. (4)

No doubt, there is a need for a comprehensive law for anti-torture but the need of an hour is the proper implementation of the existing laws. Indian law talks about the protection of the right of the accused.

Rights of an Accused

  1. The doctrine of double jeopardy – The doctrine of double jeopardy means that no person can be punished more than twice for the same offense. This is an important principle of the administration of criminal justice. The protection against being put in peril for the offense in our country is twofold. One is provided by Article 20(2) of the constitution and the other is contained in section 300(1) of the Criminal Procedure Code,1973. 
  2. Presumption of Innocence – “A man is presumed innocent until he is proved guilty,” is a well known common law maxim. The law presumes a man to be innocent. Therefore, the burden of proving the guilt of the accused lies on the prosecution. The prosecution must prove the satisfaction of the court every fact essential to constitute the offense with which the accused is charged.  In SMT. Salika Abdul Gaffar Khan v. Vasant Raghunath Dhoble, (AIR 2003 S.C.4567) the accused were policemen who beat the deceased mercilessly continuously for about an hour until a hockey stick which was used for beating broke into two pieces. Though the acquittal of the accused person in the absence of sufficient evidence against them was upheld by the Supreme Court, the court observed that in most of the cases of custodial torture the offenders remain unpunished for the want of adequate evidence against them. Therefore, in such cases, the burden to disprove torture should be on the accused person rather than on prosecution to prove the torture. (5)
  3.  The doctrine of Self Incrimination – The accused also enjoys immunity from giving self-incriminating evidence. Article 23 of the constitution provides as follows “No person accused of an offense shall be compelled to be a witness against himself.” Any admission or statement against his own free will and that he must be presumed to be innocent until the contrary is proved. In MP Sharma v. Satish Chandra, it was held that A person whose name was mention as an accused in the first information report by the police and investigation was ordered by the magistrate, can claim the protection of Article 20(3).
  4. Right against the Power to examine the accused – Section 313 of the Criminal Procedure Code talks about the accused not required to make a statement on oath and not be liable to punishment for refusing to answer questions or giving false answers to them. Section 164(2) of the same code says that a person cannot be convicted based on a coerced confession. Any sort of confession is admissible in the court of law if it is given voluntarily beyond any doubt.
  5. Right to Legal Aid –  Another important principle of criminal jurisprudence is that accused have a fair trial. Section 303 of the Crpc says that accused have the right to be defended by a lawyer and if the court thinks that the accused has not sufficient means to engage a lawyer so under 304(1) of Crpc, it is the duty of the court to assign a pleader for his defense at the expenses of the state. (6)
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Surely, there is an outrage in our society against the death of the duo father-son in Tamilnadu. It throws light on the custodial violence which is taking place in our society. But we should not overlook that these cases are not new, this type of violence continuously happening in our country for a long time but no one puts their attention because people believe that all the accused persons are criminals and they are supposed to be tortured.  Many of us are in favor of the Hyderabad encounter case, but we have to understand that this is not how the law works. Police cannot take the rule of law in his hands. There is a proper procedure for everything which needs to be followed.  There is also a need to change the mentality of the people and proper implementation of the existing law.


  1. LiveLawTorture is not physical if you keep a person behind the bars it is also torture: Justice Deepak Gupta  (July 9, 2020);
  2. United Nation Convention Against torture, Wikipedia,(July 9, 2020);
  3. DK Basu vs State of West Bengal; AIR1997 S.C. 610 
  4. The Hindu Report ( July 9, 2020)
  5. SMT. Salika Abdul Gaffar Khan v. Vasant Raghunath Dhoble, (AIR 2003 S.C.4567
  6. Prof. S.N. Misra, Indian Penal Code (21 edition Central Law Publications)



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