This article is written by Kartik Bohra from Symbiosis Law School, Hyderabad. In this article various reasons and causes of custodial death and legal position in India with reference to the landmark case of D.K. Basu v. State of West Bengal has been discussed.
“If the Government becomes a lawbreaker and brings contempt of law; it invites every man to become a law into him” – Justice Louis Brandeis (U.S Supreme Court)
The rules and regulations through the law always discourage the acts which are against the public policy and peace in the society. Taking custody of the criminal and trying to impose punishment is a productive way to decrease the crime rates in society. Custody in the general sense is defined as putting a restriction on the freedom of movement of an individual. But nowadays, it has been observed that there is a significant increase in the death and violence of an accused person in the police lock-ups. Many deaths have taken place in the custody of police but no attention has been paid to it by the administration. Custodial deaths are unacceptable in a democratic country like India where each and every citizen of the country has the right to life and personal liberty enshrined under Article 21 of the Constitution of India. Fundamental principles of criminal jurisprudence also provide for the fair and reasonable investigation of the accused. Also, it is the vicarious liability of the state in case of custodial deaths and it is its duty to rehabilitate the victim and provide adequate compensation.
In the case of D.K Basu vs. State of West Bengal “the executive chairman of Legal Aid Services, a registered non-political organization submitted a letter to the Chief Justice of India regarding the deaths that occurred in police custody and lock-ups. It was also mentioned to examine the matter seriously and to introduce “custody jurisprudence”. It was also stated that various efforts are taken by police authorities to sleek over matters of custodial deaths and hence offense goes unpunished. Considering the various aspects and importance of the raised issue, the letter was taken as a “writ petition” and notice was given to respondents.” At that time, there was no proper machinery to be followed in cases of custodial deaths.
Deaths that occurred during the custody of police authorities are an important and significant matter of concern in the present scenario. It is more aggravating as committed by the protectors of society. This act of police officials is against basic human rights and the principle of rule of law. It is usually committed in the custody of police authorities where the victim is unable to protect himself and totally helpless. Custodial deaths are considered not only the assault on the body of an individual but also an assault on human dignity and create the mental agony or trauma on the minds of the victims within the four walls of lockups.
Custodial deaths : reasons and perspective
Asian Centre for Human Rights (ACHR) in its recently published report released that a total of 1,674 custodial deaths occurred which includes 1,530 in the Judicial custody and 144 deaths in police custody took place in India. This alarming increase in custodial deaths is an important matter of concern in society.
Custodial death is generally defined as the demise of an individual, who is arrested by the police as a suspicion for his involvement in the crime or being under trial. The state of U.P has the worst and recorded the highest number of deaths that took place in the custody of the police. There has been a legal right given to the police to use reasonable force to extract the information from hardened criminals. It is a well-known fact that police officials use force while interrogating the accused. Death in the custody of the police is a “black spot” to the entire department as they have no right to take law into their own hands and cause the death of an accused. One of the main reasons behind the custodial death is observed that due to the influence of the powerful personalities and politicians, police personnel try to extract the confession of the accused immediately by using force. They use force if the accused deny admitting his guilt. It is also shown that police authorities not only use force on hardened criminals but cause the death of persons who have no previous criminal records.
According to the report published by NCRB, as many as 100 cases of custodial deaths were registered in Maharashtra. Out of which 58 people were not even on remand and not produced before the Judge. It is a serious cause of concern as people are killed without having any access to justice in a democratic country like India.
It is observed that “suicide” is also one of the most reported cases of custodial deaths in India. In India, as per NCRB, cases of suicide in the custody of polices increased by 9% in the year 2018. The State of Andhra Pradesh recorded the most deaths caused due to suicide is 27, which is followed by Maharashtra and Gujarat. Also, death during the treatment and death of the accused due to illness is observed as a secondary reason for the death of the accused in custodial cases. The death of the accused is caused by the assault by police officials in custody. Some other prominent reasons are road accidents which include journeys connected with Investigation, death caused while escaping from custody, and injuries sustained prior to custody.
Constitutional and Human Rights perspective
The increasing number of cases of custodial deaths in the world’s largest democracy has shaken the faith in democracy and rule of law. Jerome H. Skolnick has posed certain questions before police authorities for the preservation of rule of law and democracy in the country. For what purpose do police exist? What values do police preserve in a democratic country? Are the police to be principally an agency of social control with their chief value the efficient enforcement of the prohibitive norms of the substantive criminal law? It is given by maxim “salus populi est suprema lex” (the safety of the people is the supreme law).
It has been rightly observed by the court in different cases that every person has a right to get justice with reasonable and fair means and the law must be against the solitary confinement of an accused. Also, there must not be inordinate delays in the proceeding of the investigation as well as trial.
In the case of Sunil Batra v. Delhi Administration, “it was observed by the court that inhuman torture and treatment is against Article 21 of the Constitution of India which includes right to live with human dignity. The rights guaranteed under Article 21 are not merely a fundamental right but also a human right.”
In another case of A.D.M Jabalpur v. Shiv Kant Shukla, Justice H.R Khanna observed that “no one can be deprived of his right to life and personal liberty arbitrarily without the provisions of the law. And it extended the meaning of the term “life” which is something more than mere animal existence.” The procedure must be followed in accordance with the law which must not be arbitrary. Thus, the procedure adopted must be fair and reasonable and in conformity with Article 14 of the Indian Constitution.
In the case of Khatri v. State of Bihar, “it was held by the SC that the police officers must be punished who barbarically blinded 30 prisoners by pouring acid. Further, the SC condemned and held that this barbaric torture by the police officials is against the provisions of Article 21 of the Constitution of India.” Article 20(3) of the Constitution also safeguards the rights of the arrestee. It provides that a person accused shall not be compelled to be a witness against himself. And adopting third-degree tortures and methods to extract the information from the accused is in clear violation of Article 20 (3) of the Constitution of India.
Human rights are defined as inherent rights available to the people in the society without which we cannot live as human beings. India is considered as the world’s largest democracy and adopts various conventions which promote human rights worldwide. These rights are generally enshrined under the Constitution of India. India to maintain its sanctity at its global level shows its commitment at the national as well as international level to promote human rights.
Custodial death is also considered as ‘extrajudicial killings’ which is in clear transgression of human rights. It is an offense that destroys the individual personality and constitutes an assault on the dignity of an individual. In the cases of custodial deaths, the person not only undergoes physical suffering and external body pain but also mental torture inside the four walls of lockup. Whether it a mental suffering or a physical infliction of pain, the extent of torture and trauma, a person experiences is beyond the purview of the law. This issue is prominent and not only peculiar to this country but it is widespread. The UDHR raises its concern over the increasing number of cases in India and stated that Article 5 must be kept in mind while treating a person during investigation and trial.
Fundamental principles of criminal jurisprudence
Incarceration barbarity has been validated by the popular retributive- deterrent philosophy, this a current sentencing coin in many criminal jurisdictions. Every person has a right to have a free and fair investigation and trial according to the criminal jurisprudence. It is obligatory on the part of a public officer to conduct the investigation in an accurate and fair manner as provided under the code.
In the case of Sidhartha Vashisht v. State (NCT of Delhi) (2010), it was held by the court that in criminal jurisprudence, the accused or suspected person is placed in a beneficial place. The administration system provides that an accused is presumed to be innocent until proven guilty. Thus, he is entitled to have a free and fair investigation in all aspects without any compulsion and torture. The investigation led by the police officer must be fair and reasonable according to the basic principles of natural justice and rule of law. It is not only the duty of the investigating agency to provide fair investigation but the court also needs to ensure that investigation is fair and in accordance with the various provisions of CrPC.
In the case of Vinay Tyagi v. Irshad Ali (2012), it was held by the court that the investigation must be honest, just, fair and reasonable, and in accordance with the law. In another case of State of West Bengal v. Sampat Lal (1984), it was held by the court that the court has residuary power to issue certain directions to the police officers when the requirement of the law is not taken into consideration and investigation is unjust and unfair. Thus, Custodial deaths are in violation of the basic principles of criminal jurisprudence.
Vicarious liability of the state
While considering the increasing number of cases of custodial deaths in India, the National Human Rights Commission opined that in the cases of custodial deaths, a police officer must be held liable and not the state under the principle of vicarious liability. But this argument on behalf of the NHRC is not valid as the doctrine of vicarious liability must be applied to the State. It is the immense duty of the state to protect the law and order in the state under the seventh schedule of the Constitution of India. It is the duty of the state to provide safe custody to the accused and preserve their fundamental rights as enshrined under Art. 21 of Constitution of India.
It is the moral as well as the legal responsibility and accountability of the state and the union of India to protect the person’s fundamental rights. There have been a number of cases where it is argued on the behalf of the center that it is the duty of the state to protect the law and order in the state and not the center. But this contention of the center is not valid in the eyes of the law as it is the duty of the center to preserve the basic fundamental rights of citizens of the country and protect the provisions of the Constitution.
It is generally believed that if such liability is imposed on the state then the amount of compensation shall be exemplary which will be in the interest of the victim. It is sufficient to justify that is the liability of the state in cases of custodial deaths where there is an infringement of fundamental rights enshrined under the Constitution of India. Article 21 clearly states that “no person shall be deprived of his personal liberty except the procedure established by the law.” But this procedure is not only subjected to the present law but also to the principle of natural justice. It was observed that compensation must be paid by the state to the victims if there is an infringement of Article 21. The UN convention is also against torture and other cruel treatment towards the human dignity of the arrestee. These international organizations raise their concern over the increasing number of cases of custodial deaths in India and held that it is in clear transgression of human rights and dignity of an individual. In the case of Mariayappan v. State of Tamil Nadu (2009), it was held that “perpetrators of the crime that is the police officials must be punished for the act and the state is liable to pay the compensation to the family of the victims.”
In another case of Moheela Moran v. State of Assam (1999), it was held by the court that the vicarious liability of state in the cases of custodial deaths. Thus, this law preserves the constitutional rights of the victim and in consonance with the law of torts for an effective mechanism of the principle of natural justice. Thus, it is the duty of the state to protect the law and order in the society and it is the vicarious liability of the state in the cases of custodial violence.
The legal position in India
The Code of Criminal Procedure and the Indian Penal Code provides protection to the accused person against arbitrary arrest and custodial violence. However, it is necessary for the legislation to implement new provisions under the Code and Indian Evidence Act which specifically deals with the issue of custodial deaths whether it is unnatural or natural death in the police lockup. It was also suggested by the law commission report.
Protection under the Code of Criminal Procedure and Indian Penal Code
The Code of Criminal Procedure, 1973 provides certain provisions to protect the person from custodial torture. There are various provisions enshrined under CrPC which should be kept in mind by police officials while having custody of the accused or suspected person. The power to arrest any person is given under Section 41 of the Code. This section clearly states that a police officer has the power to arrest any person to investigate the case further, but has no power to use unnecessary force to extract the information from that person. Also, the power given to the police officer is discretionary as the word “may” is used in the section. So, it is his duty to arrest a person according to the facts and circumstances of the case and not otherwise.
In the case of State of Andhra Pradesh v. Venugopal and Ors (1963)., the court held that torture in the custody of the police is a serious crime and punished the perpetrators of the crime with rigorous imprisonment of 5 years.
In the case of State of Uttar Pradesh v. Ram Sagar Yadav and Ors (1985), it was held by the court that a person beaten up to death in police custody will be covered under the provisions of the Indian Penal code and convicted under Section 304 of IPC and set aside the judgment of High court.
Section 49 of the Code also provides that the accused must not be subjected to more restraint or restrictions than necessary to prevent his escape. The word ‘necessary’ is important here. It is the duty of the state and police officials to make sure that an accused must not be subjected to unnecessary restraint. The person who is arrested shall not be subjected to unnecessary force and torture and police officials are liable under different sections of the Indian Penal Code if they abuse their power. These sections include Section 340 of IPC and also section 349 to 358 of the same Code which contains the provisions related to assault and criminal force.
Section 50 of the Code provides for the ground of arrest. These grounds of arrest must be in compliance with Article 22 of the Constitution of India. So, that non – compliance with the section will give rise to illegal arrest and detention of an accused.
Section 161 of the Code provides for the statement to be recorded with all the facts and circumstances of the case by the police officer. This statement must be distinguished from the information which starts the investigation. Section 161(2) provides that a person accused must not be bound to answer those questions which would have a tendency to expose him to a criminal charge. Also, Section 164 of the Code provides for the confessional statement. It is observed in this case that a magistrate must take to see the requirements under section 164 are fully satisfied.
But these sections enshrined under the Code are not sufficient in order to prove the guilt of the perpetrators of the crime. The perpetrators of the crime are generally acquitted due to the lack of evidence against them and if they are convicted then there is no specific and strict punishment defined in the code. Thus, it is necessary for the legislation to pass a law that is in direct connection to the prevention of torture and violence in the custody of the police. There should be strict punishment for these officers as they are the protectors of the citizens. It is recommended that a new provision must be added to the code which specifically deals with the issue of custodial violence and death. Some other provisions under the Code such as Sections 53, 54 and 167 also provide and safeguard the procedural rights of a person.
In the case of Joginder Singh v. State of U.P (1994), it is opined by the Apex court that the possibility of substituting notice of appearance instead of the arrest of accused. This new idea is in relation to the summons and this can reduce the possibility of custodial crimes in India.
Both the provisions of the Code as provided under the Section 56 of the Code and Art. 22 of the Constitution lay down that a person must be produced before a magistrate within 24 hours of the arrest. But in the case where a person is not produced before the judge and he is kept in the custody of the police where he is facing torture and coerced to confession which leads to the discovery of relevant facts. To prevent this extra-judicial practice and torture, a magistrate must ensure and enquire the date and time of arrest of the accused when he is presented before the magistrate and records the same. Thus, the new provision under CrPC is recommended for the same.
Further, certain provisions of the Indian Penal Code also provides for the protection of the accused under the custody of the police. Section 330 and 331 of the Code provides for the protection of the accused from unnecessary harassment in custody as well as to extort information without his will. Also, the code provides that a police officer is liable to be punished if he exercises or abuses his power without any necessity.
Protection under code of Indian Evidence Act, 1872
The accused is also protected under the provisions of the Indian Evidence Act. Section 25 of the Act provides that a confession made to the police cannot be admitted in court. Also, Section 26 of the Act provides that a confession made to the police by the person cannot be proved against such person unless it is made before the magistrate.
Also, the Code provides for Section 164 where a magistrate has to record the confessional statement of the accused made to him in the course of an investigation or any stage of the trial. Thus, the Indian Evidence Act also provides protection to the accused from being unnecessarily harassed by the police in the lockup.
Case analysis: D.K. Basu v. State of West Bengal (AIR 1997 SC 610)
This is a landmark judgment given by the Apex court in the case of an increasing number of custodial deaths in India. The executive chairman of legal aid services wrote a letter against the increasing number of cases of custodial deaths and this letter was treated as a writ petition by the court by taking into consideration the gravity of the issue. In this case, it was observed by the court that there is no effective mechanism proposed by the legislation to deal with the cases of custodial deaths in India.
The law commission of India under 113th report suggested certain amendments into Indian Evidence Act by incorporating Section 114-B which deals with the issue of custodial violence. The court observed that custodial death is a matter of concern and it is more aggravated as it is committed by the protector of the citizens. Thus, it was held by the court that this act is against Art. 21 and 22 of the Constitution of India. It is in clear transgression of the victim’s fundamental rights and human dignity. Sometimes it is difficult to prove the guilt of police officers as a lack of evidence against them. No direct evidence available against these officers leads to their acquittal. It was also observed by the court that the use of third-degree methods by police is illegal and should not be used to extract the information from the accused and held that majesty of the law must prevail. Thus, it is the right of the police to investigate the case and interrogate the accused but not allowed to use third-degree tortures to extract the information. Court also observed that recommendations suggested by the law commission report must be adopted by the government to curb these offenses against humanity.
- It is the duty of the police officers not to use third-degree methods while having investigation and interrogation from the accused.
- Attention must be required in checking the working environment, training, and orientation of the police officials with the basic human values.
- The legislature must adopt the recommendations suggested by the law commission report by inserting Section 114-B.
- A balanced approach should be used by the police to extract the information from hardened criminals.
- There must be a memo made by the police officer in charge at the time of arrest and at least one family member of the accused must be present when the arrest is made.
- The requirements under the Constitution under Art. 21 and 22(1) must be followed by police officers.
- Awareness must be created to the arrestee so that he can understand his basic rights at the time of the arrest.
- Also, the court has given certain preventive measures that must be followed by the police officer in charge at the time of the arrest of an accused.
Thus, this case was a landmark judgment given by the court while considering the rampant issue of custodial death and violence in the country. But somewhere our legislation has not yet taken any moral as well as legal consideration towards this issue and there is no specific law in the country which deals with the issue of custodial deaths. Public officers are acquitted after having no evidence against them to prove their guilt. Thus, guidelines given under this case must be adopted by the officer and no one should be allowed to take the law into their hands.
The study concludes that custodial deaths are increasing in India and various organizations raise their concern over the same. Death can be of natural or unnatural consequences. But generally, the death in custody is occurring due to the torture of the pubic officers while investigating the case. It is necessary and permitted by the law to interrogate an accused but at the same time, it is also provided that no illegal methods be adopted to investigate the case.
To conformity with the constitutional provisions and human rights aspects, it is necessary that these offenses against the arrestee must be curbed in the democratic country. The Supreme Court has taken this matter seriously and raised its concern in the number of cases of custodial violence and death. But it is no moral, as well as legal consideration, is taken by the legislation.
Further, there are various provisions incorporated under the Code of Criminal Procedure, Indian Penal Code, Indian Evidence Act, and Constitution of India to protect and safeguards the rights of an arrestee. But these provisions are not sufficient to prove the guilt of the perpetrators of the crime due to the influence of politics and lack of evidence against them. These provisions are not specifically dealt with the issue in the hand of custodial deaths in India especially unnatural deaths in the lockup. Though the SC suggested and recommended certain guidelines in various cases of custodial violence, legislation has not been taken into consideration, and death due to custodial violence is increasing day by day due to various factors in India. It is the duty of the state to preserve the Constitution of India and make certain amendments to the law which are prima facie in violation of rule of law. It is the vicarious liability of the state to curb these offenses as they are committed by the protectors of the citizens.
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