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Report No. 152

4. Presumption against Police Officer or public servant

Issue No. 4

Whether section 114 of Indian Evidence Act should be amended provide for raising presumption against the police officer or public servant in case of any injury caused to a person in custody or resulting into death. Should the presumption be rebuttable?

Views of Academicians

Out of two academicians, one has responded in affirmation. The other has not touched the issue.

Views of Judges

Out of five Judges, almost all of them are in favour of the presumption in case of custodial death and have answered it in affirmative. One of them Mr. Justice Rizvi from Jammu and Kashmir High Court says the presumption must be rebuttable. One of the judges has suggested to amend section 114 of Evidence Act and the presumption should be rebuttable under section 4 of the Evidence Act. Mr. Justice Ranganath Mishra is of the view that public sentiment seems to be in favour of raising presumption. However, an exception may be made in the cases of grievous injury and death and the rebuttable presumption could be proved in such cases.

Views of Advocates

Out of seven responses, five are in favour of rebuttable presumption. They feel that once the presumption under section 114 of Evidence Act is introduced, it would definitely go a long way in restricting and controlling the prosperity of public servant or police officer in existing custodial cruelty or torture on arrested person.

Views of Police Officers

Out of the twelve views received by the Law Commission, three senior police officers have supported the proposal of presumption and rest have opposed the same. Those who are against stated that there is no need of amending section 114 of the Indian Evidence Act. The Police officers of higher ranks have no objection to third-degree method.

Views of States Governments

Out of nine State Governments/Union Territories, four are against the idea of presumption and five seem to have no objection to amending section 114 of the Evidence Act to draw presumption that injury caused during custody was caused by the officer under whose custody the person was given at that time. The Government of Andhra Pradesh feels that the provisions contained in sections 114(A) and 114(B) of the Indian Evidence Act.

If extended to custodial crimes the police officer concerned will be made accountable and the custodial crimes can be checked. The Governments of Pondicharry and Mizoram follow this view. The Governments of Goa and Meghahya also favour the proposal. The Government of Goa also states that it should be specified whether the benefit of presumption applies to cases of grievous hurt or to cases of simple injury as well.

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