This article is written by Ms. Somya Jain, from the Vivekananda Institute of Professional Studies. The article establishes a detailed study of the procedure for inquiry to be undertaken while dealing with a case of custodial death.

Introduction 

The death of a person, while he is held in custody, is one of the worst kinds of offence in the history of human rights. Custodial deaths are not of recent origin rather they found their existence in the past. However, in recent times the cases of custodial deaths have increased at an alarming rate and have become a matter of great concern for the evolving society. Offences such as these raise questions on the applicability of fundamental rights and the underlying implications on human rights. The word custody denotes guardianship and even if we consider the definition from the perspective of arrest or incarceration, it would not include the causing of suffering to the oppressive and overpowered detainee to display superiority. It directly flouts the basic rights of the citizens and is upfront detrimental to human dignity. However, while considering the affirmative actions taken against such offences many custodial deaths are not investigated and even if, after a considerable amount of delay, these incidents are investigated, they are pictured as death due to natural causes because of the diplomacy of the bureaucrats. Therefore, it is required to have stringent laws and the corresponding rules to avoid any such incidents to take place. The concerned authorities have time and again laid down some procedures which have to be followed by police in order to curb custodial violence. 

Procedure enshrined under Section 176(1A) of the Code of Criminal Procedure 

One of the biggest challenges faced in combating the offence of custodial violence was the initial probe which was generally taken by the police counterparts. The “brotherhood of the police” would hinder the investigation as the police officials would prefer to remain silent on the same and not break the underlying ties of companionship (State of MP v. Shyamsunder Trivedi 1997). Even though at a subsequent stage, the cases may be transferred to independent authorities like CBI or SIT, the prima facie evidence like the post-mortem reports may be destroyed in the procedure which would render the transfer futile. To counter this facet of the issue Section 176(1A) was introduced in the Code of Criminal Procedure, 1973 through the amendment of 2005.

The general clause of Section 176(1) of the Code empowers any magistrate, having jurisdiction, to hold an inquiry into the cause of unnatural death in addition to or instead of the investigation held by the police officer. However, such power is merely discretionary in nature and does not have to be followed mandatorily. 

With the addition of Section 176(1A) in the Code, custodial violence has been recognised in legal parlance as one of the brutal forms of crime. The Section stipulated that if:

1. A person dies or disappears or,
2. A woman is alleged to have been raped,

while such a person or woman was in the custody of the police or in any other custody as authorised by the court, then it is mandatory for the judicial magistrate or metropolitan magistrate, having competent jurisdiction, to conduct an inquiry into the matter in addition to the inquiry or investigation conducted by the police. 

This provision is a special provision dealing only with the custodial offence. Therefore some of the essential characteristics of the provision are:

• The inquiry to be conducted by the judicial or the metropolitan magistrate will run parallel to the inquiry or the investigation undertaken by the police authorities. 
• The provision poses a mandate on the magistrate to conduct the concerned inquiry. The word “shall” has been used instead of “may” which indicates the obligation imposed on the authorities. 
• Further, through the amendment, the executive magistrate ceased to be the relevant authority to conduct such inquiries. Rather the judicial magistrate or the metropolitan magistrate has been granted the duty to conduct the inquiry.

However, for the past 10 years, the provision has been interpreted in a restrictive sense. While reading Section 176, it envisaged that the executive magistrate may conduct an inquiry in the case where unnatural death had taken place in addition to the inquiry conducted by the police. Similarly, when Section 176(1A) came into existence it was interpreted to restrict its scope only to those cases where the death did not take place naturally, rather it was the result of custodial violence. It was only when there were no suspicious circumstances, foul play, lack of evidence or allegations of an offence, that Section 176(1A) would be applicable. This restrictive meaning led to an invariable increase in the cases of custodial offences being registered as incidents of natural deaths.

According to the National Crime Records Bureau (NCRB), out of 76 total cases of custodial deaths in 2020, 31 were recorded as suicides and 34 as being caused by illnesses. Only one death was recorded due to physical assault in police custody. Similarly, almost 70% of deaths in police custody in the past decade (out of a total of 1,004) have been attributed to illness, suicide or death from natural causes. Further, the Indian Annual Report on Torture 2020 gives a detailed analysis of all the cases of death and violence committed while in police custody. It illustrates the various reasons that were highlighted while investigating these cases. Thereby, the entire data along with the detailed analysis has been contemplated within the concerned report. 

Considering the above data, recently, the National Human Rights Commission (hereinafter called NHRC) passed an order to take a probe in all the cases of custodial deaths irrespective of whether the cases are suspicious of foul play or not. Expanding the ambit of the provision it was ruled that only after conducting an inquiry by the judicial or the metropolitan magistrate can it be said that the custodial death took place due to illness or some other natural cause. Prior to the said inquiry nothing should be attributed as to the cause of death, disappearance or rape alleged to have been committed while in police or any other authorised custody. 

Further, the Supreme Court in a Public Interest Litigation Petition (2020) directed all the states and union territories to strictly implement Section 176(1A) as it was observed that out of 827 cases of death or disappearance of persons in police custody between 2005 and 2017, a judicial inquiry was ordered only in 166 cases i.e. 20% of the total cases. Similarly, in the Jeyaraj-Benix custodial death case, the Court has to make a suo moto intervention to order an inquiry by the judicial magistrate. 

Apart from this, Section 176(5) was also instituted through the amendment of 2005. The provision mandates the judicial magistrate, the metropolitan magistrate, the executive magistrate or the police authorities conducting an inquiry to send the body within 24 hours to the closest civil surgeon or any other qualified person. If the same is not possible, reasons must be recorded in writing. 

NHRC Guidelines

The National Human Rights Commission of India was set up through a parliamentary Act known as the Protection of Human Rights Act 1993. It aimed at better protection and promotion of human rights in India. It complements both the domestic as well as international principles and thereby safeguards human rights by all means. The NHRC gave certain guidelines in furtherance of the augmenting custodial violence in India. Some of them are:

• Initially, when the information of any custodial death is received, the magisterial enquiry should be undertaken at the earliest without any delay. 
• The enquiry magistrate should observe some duties while performing their task. The enquiry officer must visit the place of occurrence and note down all the underlying facts and the corresponding evidence. In addition to this, the officer must try to identify natural witnesses who must have been present at the time of the incident. The intention of the police authority alleged to have committed the concerned crime should be subject to close scrutiny for its veracity.
• A public notice should be issued in any vernacular newspaper to inform the witnesses concerning the case. The officer must ensure that the information must reach all the concerned people, especially the relatives of the victim.
• A fair opportunity should be granted to the relatives of the victim to represent their stance. 
• The magisterial enquiry should include the following aspect:

• The circumstances of the death.
• The manner and sequence of incidents leading to death.
• The cause of death.
• Any suspicion of foul play that emerges during the enquiry or any person found responsible for the death.
• The role played by the public servant in committing or omitting the concerned act.
• Adequacy of medical treatment provided to the deceased.
• The enquiry magistrate must consider every document and report and must analyse the same very minutely. Some of the important documents as per the guidelines must include:

• Inquest report.
• Post-mortem report.
• Viscera analysis report 
• Histopathological examination report.
• Initial health screening report of the prisoner. 
• Final cause of death.
• Medical treatment records.
• Inquiry/ investigation report of the police. 
• FIR/General Diary (GD) entries/any other relevant police records.
• Ballistic examination reports of weapon and cartridges.
• Forensic examination report of ‘hand wash’ of the deceased to ascertain the presence of residue of gunpowder.
• The fingerprint expert reports on fingerprint impressions available on weapons alleged to have been used by the deceased.

• The magisterial enquiry report must necessarily include the gist of documents, analysis reports, recorded statements, discussions that took place and the conclusion. The report must indicate the cause of death. If the act was due to the commission or the omission of the police, then the names of the public officials concerned with the same should also be mentioned. 
• All the statements made by the witnesses, relatives or the medical examiner and the external reports that were referred by the enquiry officer must be attached along with the relevant annexures.

The NHRC should be intimated about the custodial deaths within 24 hours of occurrence. Further, the NHRC has also set a deadline for submitting all the relevant documents and reports including the post-mortem report and managerial enquiry report, after the completion of the inquiry, within 2 months of the incident.

Registration of FIR

Registering an FIR even in case of custodial violence was held to be mandatory in nature under Section 154 of the Code which discloses that if any information is received regarding the commission of a cognizable offence then it should be reduced into writing. Similarly, Section 176(1A) deals with cognizable cases whereby death has occurred in the custody of the police or any other relevant authority. Therefore, it is requisite for the authorities to register an FIR in the case of custodial deaths.

However, it has been observed that many police officers forbid registering an FIR in case of custodial death. The solution to this problem was suggested by the Law Commission in its 152nd report. The Commission recommended the addition of a new provision that would separately deal with custodial violence cases and would empower the aggrieved person to approach the judicial magistrate if the police precluded from lodging an FIR. 

Accordingly, Section 154A was recommended to be added by the Commission. The proposed Section incorporated that if any police official refrains from lodging an FIR, then: 

• The aggrieved person can approach Chief Judicial Magistrate if custodial violence has taken place not resulting in the death of the victim, or
• The Sessions Judge, if the custodial death has taken place, or
• Suo moto inquiry can be conducted in case the court on preliminary inquiry is satisfied that a prima facie case is present.

However, the provision never found its way into the Code. If the provision would have been incorporated, it would have ensured a better criminal investigation through the hands of the judiciary leading to a more enhanced system of justice. 

Directions to video record and photograph autopsy proceedings

The NHRC issued certain guidelines regarding video-filming and photographing the post-mortem examination if the death has occurred in police custody. The recording must be then sent to the Commission for further inquiry. The objectives for the same can be enumerated as under:

• To record the detailed discovery of the post-mortem examination, especially the marks indicating any kind of brutality and violence. 
• By video graphing the entire procedure, the probability of undue influence or suppression of material facts can be ruled out.
• To facilitate an independent review of the post-mortem examination report at a later stage if required. 

The guidelines extensively enshrine upon the manner in which video graphing of the examination should be undertaken. Further, a Model Autopsy Form has been prepared by the Commission which has to be filled accordingly. 

Custodial Jurisprudence in the case of D.K. Basu v. State of West Bengal (1997)

The Supreme Court in the landmark case of D.K. Basu v. State of West Bengal (1997), established the concept of custodial jurisprudence by providing some directives to be followed while dealing with cases of custodial violence. Some of the guidelines are:

• The use of third-degree methods or any form of torture to extract information is not permitted.
• The police officials who carry out interrogation and arrest must bear clear, visible and accurate nametags and identification along with their designation. Following this, particulars of all the officials should be maintained in a register.
• The arrestee or the detainee should be granted the right to inform any relative about the arrest and the place of detention. Followed by this, the arrestee should also be informed about the offence committed and the rights vested with the detainee. 
• The lawyer of the arrested person can be present at the time of interrogation but not throughout. 
• Further, an entry should be made in a register regarding the name and place of the detention centre followed by the name of the relative of the arrested person and the personnel under whose custody he has been detained. 
• Subsequently, the arrestee should be examined by a medical examiner at the time of arrest if they request it. All the injury marks must be recorded in an inspection memo signed by both the arrested person and the police officer concerned. A copy of the memo should also be provided to the detainee. 
• The arrested person should be subject to a medical examination every 48 hours by a trained doctor who has been approved by the State Health Department.
• Further, a copy of all the documents and the relevant entries along with the memo should be sent to the area magistrate for their record.
• The police officer concerned for the custody of the arrested person should inform the police control room about the arrest within 12 hours. 

Conclusion

Arresting or detaining a person does not lead to the extinction of all the fundamental rights per se. The right to life and dignity is one such right that cannot be deprived of any human being. Hence, when a person is detained, it is the responsibility and the duty of the detaining authority to guarantee the life and the physical integrity of such a detainee. Therefore, if someone dies while in custody, it is only relevant to conduct an independent investigation irrespective of the cause of death which may be a result of unlawful killing, ill-treatment or inadequate living conditions or it may even be natural or accidental. A prompt, impartial and effective investigation is essential for ascertaining the cause of death, preventing similar incidents in the future and ensuring the security of other prisoners. Along with this, steps should be taken to curb the growing menace of custodial violence. 

References

1. 17chapter 9.pdf (inflibnet.ac.in)
2. GUIDELINES OF SUPREME COURT AND NATIONAL HUMAN RIGHTS ON HUMAN BEINGS (wbja.nic.in)
3. Probe all custodial deaths, rules NHRC | Latest News India – Hindustan Times
4. Guidelines for investigating deaths in custody (icrc.org)

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