Report No. 152
5. Independent Agency for holding Enquiry
Issue No. 5
The fifth issue raised by the Law Commission was whether the law should provide for independent agency for holding inquiry into the complaint of torture or death of a person in police custody. What should be that agency? The Law Commission also raised further question whether the purpose will serve if the inquiry is held by the Chief Judicial Magistrate or Metropolitan Magistrate in case of torture and injury and by Sessions Judge of the District in case of death? Should they get the assistance of C.I.D. or any police officer of their choice.
Views of academicians
The academicians favoured an independent agency for holding the enquiry into custodial crimes. One of them adds that Women's Commission Act provides for an independent agency.
Views of Judges
All the five judges are in favour of a law providing for an independent agency for investigation of cases. One Hon'ble Chief Justice of a High Court has suggested that it will be really worthwhile to empower the Chief Judicial Magistrate and Sessions Judges to take cognizance of the reports to custodial violence and custodial death respectively. By doing so police agencies will be supervised by judicial officers. The other Judge has indicated that newly constituted Human Rights Commission will be proper agency.
Views of Advocates
Except one advocate who has not replied to the question, rest of them are in agreement with Law Commission's suggestion that an independent agency is necessary for investigation of custodial death or torture during custody. They feel that if the inquiry is held by Chief Judicial Magistrate or Metropolitan Magistrate or Senior judge as the case may be the Code of Criminal Procedure will have to be changed quite substantially for the purpose of holding the trial of offence. They have said that police administration should not be allowed to participate in such inquiry. They feel that CBI, being a part of police administration does not hold better position in public trust.
Views of Police Officers
Out of twelve, only three are in favour in independent agency. One Ex-Commissioner of Police, Delhi, prefers setting up of a separate organisation under the Government headed by serving or retired judge in every State to look into the torture or custodial death. A majority of police officers are not in favour of any such agency. They said that in Maharashtra there is an order of State Government for investigation of the cases of custodial deaths or custodial violence or rape by the State C.I.D. and similar practice is followed in other States also.
In Tamil Nadu P.S.O. 445, Vol. I placed on the procedure in cases of police torture, death in custody, rape etc. for other public servants investigation is carried out by police and action taken according to law. Investigation by the Executive Magistrate is adequate in actual experience. According to them, the suggestion made by the Law Commission will not serve the purpose because C.J. Ms. and Sessions Judges are already over-burdened and it will take a long time in enquiry and then case will be registered.
The purpose would be served by making investigation of such cases by State C.I.D. or a central independent police agency mandatory and providing for investigation by Human Rights Commission in any case where the investigation by such an agency is not found to be satisfactory.
Views of State Governments/Union Territories
Most of the State Governments/Union Territories are against the suggestion of an independent agency. One of these has suggested that an inquiry by a Magistrate under section 176, Cr. P.C. will serve the purpose. The Government of Andhra Pradesh feels that the Human Rights Commission both at Central and State level created by an ordinance will have an investigating machinery of its own to investigate complaints of torture or death of a person in police custody. No other agency is required. The Governments of Mizoram and Pondicherry follow this view.
The Government of Karnataka is of the view that there are no two opinions as regards entrusting cases of torture or death in police custody to an independent agency for a thorough investigation. It adds that entrusting enquiry of all such cases to the judicial authorities would not be advisable. In Karnataka cases of custodial death are referred to the CID. Cases of torture in custody are also dealt with departmentally.
The Government of Meghalaya holds that such mandatory inquiry may be conducted by an Executive Magistrate. Section 176, Cr. P.C., may need amendment. The Magistrate may have the assistance of the CID or any police officer of his choice.
The Government of West Bengal is of the view that in case of torture or death in custody, it will be sufficient if a Judicial Magistrate having jurisdiction holds inquiry. He should have the liberty to obtain the assistance of the Criminal Investigation Department of any police officer within a the jurisdiction.
The Government of Bihar and Goa are against the proposal.