This article has been written by Samarth Suri from Symbiosis Law School, NOIDA. The article talks about the deplorable practice of torture during investigation, enlisting the major provisions that are effected while doing so inside the criminal justice adjudication system in India.
Table of Contents
The machinery of the state works in a way that the arrest and investigation of criminals is done by the Police, in this regard the police has extremely wide powers. In the pursuit of forming their case based upon the charge, the police tried to use prohibitory methods to take out evidence of the accused. The practice of torture during investigation, is one that has rather been adulated through Indian cinema, however there are specific provisions under the act that provide protection to the accused in such cases.
Legal instruments for protection under the constitution
First and foremost, the law that forms the basis of all laws is The Constitution of India. In this regard, there are a few articles under Part-III of the Constitution which specifically deal with arrest, detention and confessions.
To know more about the Torture during investigation and interrogation: compensation and remedies in brief, please refer to the video below:
Article 20– Article 20(3) of the Constitution provides laws for protection against self-incrimination. Meaning that no person convicted of an offence shall be compelled to be a witness against himself.
Article 21– This Article provides for the right to life and personal liberty. This has had a very wide interpretation under the Constitution, with almost all other basic rights coming under this. The article also states that this right can only be abridged in accordance with procedure established by law. In this regard, the supreme court in the case of Maneka Gandhi v. Union Of India has interpreted “Procedure established by law” as due process of law, thus even the law that seeks to abridge Article 21, must be fair, just and reasonable and not arbitrary, cruel or whimsical. Such law should fulfil the provisions of Article 19 of the Constitution. Although, the article doesn’t contain anything against custodial torture, the words “Right to life and personal liberty”, have been interpreted to include protection against torture, assault and injury. In Babu Singh v. State of U.P, the supreme court held that the refusal to grant bail in a murder case without proper grounds would amount to denial of personal liberty under the article.
Article 22– Article 22 which deals with rights against arrest and detention entails the following provisions:
- That no person shall be arrested or detained in custody without being informed of the grounds of such arrest.
- Every person that is so arrested has to be produced before the nearest magistrate within a period of 24 hours from such arrest excluding time taken for travel. Furthermore,
nobody shall be arrested beyond a period of 24 hours without the permission of the magistrate.
- Every person that is arrested shall have the right to be represented by a legal practitioner of his choice.
- This type of detention applied to people who for the time being are an enemy alien or to any person who has been arrested under a law providing for preventive detention.
- Any person who has been arrested under preventive detention can be arrested for a period of 3 months.
Protections provided under the Indian Penal Code
The Indian Penal code also entails a section that protects the interest of those under custody.
Section 330– This Section criminalizes custodial torture. Under this whosoever voluntarily causes hurt for the purpose of extorting from the sufferer information about the crime he/she did, shall be punished with imprisonment of a term, which may extend to seven years and shall also be liable to pay fine. For example- if a police officer causes hurt to an accused while he is in custody, to induce him to point out where the stolen property is, he shall be guilty of this crime.
Similarly, Section 331 of the act criminalizes the grievous hurt caused to the accused for extorting evidence.
Now, these are cases where the validity of the arrest is not in question, and the only use of force to take out confessions from the accused has been put in question. Section 340 to the act criminalizes wrongful confinement. Whoever wrongfully confines another person so that the person cannot go beyond a circumscribing limit, is said to commit the crime of wrongful confinement.
Section 348 to the Act, provides punishment to a person who wrongfully confines any person and then extorts any confession. The Section also punishes extortion committed to extract information leading to the detection of offence or misconduct.
Custodial sexual offences
Section 376 (2) deals with the aggravated form of rape committed by a police officer, or by a public servant, or by a person on the management or staff of the jail, remand home or women or children’s institution.
Protection given to the accused under the Criminal Procedure code
The power of arrest is conferred by Section 41 of Crpc on any Police Officer. Any police officer may, without the permission of the magistrate may make an arrest if the accused has committed a Cognizable offence in the presence of the police officer or against whom a reasonable complaint has been made and upon the facts and circumstances of that, the police officer feels that a charge is being created.
Section 49 of the Act inculcates the principles of the ICCPR and provides that no accused shall be subjected to more restraint than is necessary to prevent his escape.
Section 50(1) provides for the rights of the person that is arrested. Any police officer that is arresting a person without a warrant has to communicate to him full particulars of the offence that he has committed and the grounds for arrest. If a police person arrests the accused without a warrant for a bailable offence, he shall communicate the same to the accused so that he is able to arrange adequate securities for his release.
Section 58 of Crpc states that the office incharge of the police station shall report to the District Magistrate, or if he so directs to the Sub Divisional Magistrate, all the cases where people have been arrested without warrant.
Protection given under Indian Evidence Act
Confession is one of the major factors that determine a case. A confession made by the accused can go a long in determining the case. For this reason some safeguards have been formulated to determine the veracity of the confessions made and protect the rights of the accused. Section 24 of the Indian Evidence Act (hereinafter, IEA), makes a confession as irrelevant if the court feels that it had been made in coerced circumstances, or as a result of threat and inducement. The principle upon which this is set is that a confession made by a person under the guise of a threat or promise (providing for apparent advantage to his case) will not be taken as valid testimony.
Section 25 of the IEA provides that any confession made to a police officer will not be admissible in court. The intent of the legislature in formulating this Section was to put an end to all the malpractices used by Police officers for extracting evidence.
Section 26 to the IEA provides that confessions made whilst in the custody of a police officer will be held as invalid unless they are made in the immediate presence of a Magistrate. This Section entails those situations where the confession is made by the accused to someone else other than the police officer but under the custody of the Police.
Section 27 of IEA provides for the doctrine of confirmation by subsequent events. This section basically says that when any fact is said to be as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much so as such information or set of fats would not be regarded as a confession but relates to the facts thereby discovered, may be proved. In this there is a clear contradiction with regards to difference of opinions in High Courts with what might the world accused in reference to the section mean, under which the Bombay High court considering that it is not important for the operation of this section for the “accused” to be under the custody of the police, he may tell such information before his arrest and still would come under the definition of accused.
Important case laws
D.K Basu v. State of Bengal, is a landmark case in this regard, by reconciling the balance between the criminal justice system and basic human dignity that is the most sacrosanct in nature. The court stated that any kind of torture that is inflicted upon the convicts in any manner, during the investigation or after it will come under the purview of Article 21. In this regard the court also stated that custodial torture is a valued violation of human dignity, which destroys, to a very large extent, the individual personality. It is a calculated assault on human dignity and flag of humanity must on each occasion fly half-mast”.
In Prem Shankar Shukla v. Delhi Administration, the issue that whether an accused should be handcuffed was put to debate. The court in this regard held that handcuffing tends to mortify the accused, dehumanizing him and hence is against his personal liberty.
In Khatri v. State of Bihar, the Supreme court stated that the law regarding presenting the accused before a judicial magistrate within twenty four hours of arrest in case that person has been arrested under a cognizable offences, is sacrosanct in nature and has to be followed under all circumstances.
The rule provided under Section 25 of the IEA was given effect by the case of Queen Emperor v. Babulal, in which the court held that the legislature in formulating these rules had in view the malpractices of the police officers, in extorting confessions and that these malpractices went till the extent of third degree torture.
Although confessions made before a police officer to anyone under police custody are held as admissible in court, there is a particular exception to this, that is given under Section 27 of the IEA. In the case of Anter Singh v. State of Rajasthan, the quintessential requirements of Section 27 of the IEA have been summed up:
- The fact must be discovered.
- The discovery must have been a consequence of some information received from the accused and not by the mere act of the accused.
- The person giving the information must be accused of the offence.
- He must be in the custody of the police officer.
- The discovery of a fact in consequence of information received from an accused in custody must be deposed to.
- Thereupon only that information which is strictly based upon the facts discovered can be presented in court.
This Section has had an even more overarching relevance with reference to recent cases. In Selvi & Ors v. State of Karnataka, the court held that tests such as Polygraphy, Brain mapping and Lie detector test, cannot be used as admissible evidence in court, because doing so would mean an unwarranted intrusion into the persons Personal Liberty. Even if the subject gives consent for the use of such tests, they shall not be held as valid, because the person in this case does not exercise any control over his responses. The court however also hedl that this information may be adduced in the finding of new evidence that would be admissible under Section 27 of IEA.
The question of Police tortue is one that does not only confine itself with the physical and mental torture that the accused might have to suffer but also to the ramifications of such act. Police investigation is essential for the process of finding the real perpetrators but there is a need to strike a balance between police investigative powers and personal liberty.
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