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Report No. 152

Appendix I

Custodial Crimes

(A Working Paper)

Complaints of police excesses and torture of suspects in police custody and other governmental agencies having power to detain a person for interrogation in connection with the investigation of an offence have been made in the past. Of late, such complaints have assumed wide dimensions as the incidents of torture, assault, injury and deaths in police custody have increased to alarming proportions.

Article 21 of the Constitution guarantees right to life and personal liberty, although it does not, contain any express provision against torture in custody, but it is wide enough to protect the personal liberty of a person as no law or procedure established by law permits torture or assault on a person in eustody. Statutory laws, including the Indian Penal Code and Criminal Procedure Code also ensure the personal liberty of a person against assault and injury.

However, in spite of the constitutional and statutory provisions safeguarding the personal liberty and life of a person, growing incidence of torture and death in police custody has been disturbing factor. Almost every day one finds newspapers full of gory tales of dehumanising torture, assault and death in custody of police and other governmental agencies.

Even though no reliable official statistics on custodial crimes is available in the country, Amnesty International, in its 1993 report indicates that in India 415 people were reported to have died in custody during 1985-1992. A recent press report also reveals that 46 persons died in custody during January-March 1993. Without entering into the correctness of these figures, it is evident that the incidence of torture and death in custody have assumed alarming proportions which are adverse affecting the credibility of the rule of law and the administration of criminal justice.

It has priced the conscience of all freedom loving people and ignited criticism from law courts, human right activists and the media. The community feels that death in police custody must be viewed seriously for otherwise there will be big strides in the promotion of police raj. It should be curbed with heavy hand and the punishment should be such which would deter others indulging in such behaviour.

Custodial violence and abuse of the police power has been the concern of international community. The General Assembly of the United Nations adopted the Declaration for protection of persons from being subjected to torture and other crime of inhuman or degrading treatment or punishment on December 9, 1975. The Declaration prohibited the member States to permit or tolerate even in exceptional circumstances such as state of war or threat of war, or internal political stability. Article 5 required comprehensive training of law enforcement officers against torture.

Article 7 required system of review of the interrogation, methods and practices as well as custodial arrangements. Article 7 obligates the States 'to ensure that the acts of torture are made offences under National Criminal Law. The Declaration also provides that victim shall be afforded redress and compensation. The Declaration which is part of the binding international law has not yet been implemented so far in our country.

There also exists a code of conduct for law enforcement officials adopted by the General Assembly on December 17, 1979, under which substantive norms are prescribed for "effective maintenance of ethical standards" by the officials. Article 5 prohibits law enforcement officials from inflicting, instigating or tolerating any act of torture. This was followed by another Declaration on December 10, 1984, by a Convention which provides for more elaborate regime of 33 Articles.

The General Assembly adopted another Declaration known as "Carcus Declaration on Basic Principles of Justice for the Victims of Crime and Abuse of Power" on November 29, 1985. This Declaration also obligates the State to define laws "prohibiting the criminal abuse of power" and also for prohibition of recourse to third degree methods. India being a party to these Declarations and Conventions, is under an obligation to take effective steps, to prohibit abuse of power, including torture and custodial violence and providing for restitution and compensation to the victims and their kith and kin in accordance with the constitutional mandate under Article 51.

Invariably, the victims of torture and death in custody are poor persons who do not have adequate resources or finances to protect their life and liberty. In many cases the sole bread earner of a poor family is the victim of custodial death leaving the entire family in a State of penury and starvation. The Law Commission has, therefore, considered it necessary to take up this matter for consideration suo moto so that adequate steps are taken by amending laws to prevent recurrence of such incidents and also to provide for punishment of the guilty persons and also for grant of pecuniary relief to the victims and their dependents.

Before we discuss the various issues arising in connection with the problem of custodial torture and death, it is necessary to briefly have a look at the constitutional provision safeguarding the right to life and guarantee against torture and assault in custody. Article 21 of the Constitution provides that no person shall be deprived of life and personal liberty except according to procedure established by law. The expression "life or personal liberty" includes the right to live with human dignity which would include guarantee against torture and assault by the State.

Article 22 guarantees protection against arrest and detention in certain cases. It declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and he shall not be denied the right to consult and defined himself by a legal practitioner of his choice. Clause (2) of the Article directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the Magistrate.

A person accused of an offence shall not be compelled to be witness against himself under Article 20(3) of the Constitution. The object of these constitutional provisions is to safeguard the life and liberty of an individual even after his arrest in connection with commission of an offence. Even though Articles 21 and 22 do not contain any express provision against torture, assault or injury inflicted on an arrested person while in custody, the Supreme Court held that Article 21 guarantee-protection against torture and assault by the State while a person is in custody.1

1. Sunil Batra v. Delhi Administration, AIR 1978 SC 1675; Bachan Singh v. State of Punjab, AIR 1980 SC 1579.

Consistent with the constitutional guarantee, the statutory provisions are contained in the Criminal Procedure Code and the Indian Penal Code for the protection of a person arrested in connection with the commission of an offence. Chapter V of the Criminal Procedure Code, 1973 provides for arrest of a person and the safeguards which are required to be taken by the police to protect the interest of the arrested person. Section 41 confers powers on any police officer to arrest a person under the circumstances specified therein without any order or a warrant of arrest from a Magistrate.

This provision confers a very wide power on the police officer to interfere with the freedom and liberty of a person. Section 46 provides the method and manner of arrest. Under this section, no formality is necessary as it may be made by action or word of mouth: While arresting a person the police is not permitted to use more restraint than is necessary to prevent the escape of a person1 Section 50 enjoins every police officer arresting any person without warrant, to communicate to him the full particulars of the offence for which he is arrested and grounds for such arrest.

The police officer is further required to inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf in the event of his arrest for a non-bailable offence. It is permissible to the police officer to get the arrested person medically examined; similarly arrested person has also a right to insist for his medical examination (sections 53 and 54). Section 56 contains a mandatory provision requiring the police officer making arrest without warrant to produce the arrested person before a Magistrate without unnecessary delay.

Section 57 provides that no person shall be detained in custody by a police officer without warrant for a longer period than under all the circumstances of the case, is reasonable exceeding 24 hours, excluding the time necessary for travel from the place of arrest to the Magistrate's court. If, however, the police want to detain a person for a longer period for the purpose of interrogation and investigation, they have to obtain the orders of the Magistrate and follow the procedure as prescribed under section 167.

The arrest of a person without a warrant is to be reported to the District Magistrate or the Sub-Divisional Magistrate by the officer-in-charge of the police station making the arrest. These provisions afford procedural safeguard to a person arrested by the police. Whenever a person dies in custody of the police, section 176 required the Magistrate to hold enquiry into the causes of death. The Magistrate is empowered to record evidence and to get the dead body examined to discover the cause of death. The object of this section is to hold enquiry into a suspicious death. Such an enquiry and inquest report does not constitute substantive evidence as held by the courts.2

1. Section 49.

2. 1955 ISCR 1090.

Punitive provisions are also contained in the Indian Penal Code which seek to prevent violation of right to life. Section 220 provides for punishment to an officer or authority who detains or keeps a person in confinement with the corrupt or a malicious motive, sections 330 and 331 provide for punishment of those who inflict injury or grievous hurt on a person to extort confession or information in regard to commission of an offence.

Illustrations (a) and (b) to section 330 make a police officer guilty of torturing a person in order to induce him to confess the commission of a crime or to induce him to point out places where stolen property is deposited. Section 330 therefore directly makes the torture punishable under the Indian Penal Code. These statutory provisions seek to safeguard the interest of an arrested person, but these are inadequate. Moreover, the police do not follow these provisions instead they evade the rigours of procedural law by manipulating records.

As noted earlier, a person arrested without warrant must be presented before the Magistrate without unnecessary delay and he should also be informed of the offence for which he may have been apprehended or the ground for his arrest and he should be enlarged on bail if arrested for non-cognizable offence. The police is further required to make entry of his arrest in several documents under the Police Act and Police Manual, information to the District Magistrate and the Sub-Divisional Magistrate about the date and time of arrest.

In order to avoid these rigours of law, the police makes informal arrest without making any entry into the records. Instances are not lacking where the police has arrested a person without warrant in connection with the investigation of an offence and the arrested person is subjected to torture to extract information from him for the purpose of further investigations or for recovery of weapons or goods and also for extracting confession in violation of the statutory law. The torture and the injury caused on the body of the prisoner sometimes results into his death.

The death in custody is not generally shown in records and even effort in made by the police to dispose of the body or to make out a case that the arrested person died after he was released from custody. Any complaint against such torture or death is generally not given any attention by the police officer on account of brotherhood. No first information report at the instance of the victim or his kith and kin is generally entertained and even the higher police officers prefer to turn a blind eye to such complaints.

But even if a formal prosecution is launched victim or his kith and kin no direct evidence is available to substantiate the charge of torture or causing hurt resulting into death as the police lock-up where generally torture or injury is caused on the arrested person is away from the public gaze, where the sole witnesses are either policemen or co-prisoners who are highly reluctant to appear as prosecution witnesses firstly because of police brotherhood and secondly due to fear of retaliation by the superior officers of the police.

As the law stands today, if a complaint is made against torture death or injury, in police custody, no evidence is available to substantiate the charge in a court of law and the complainant or the prosecution is unable to produce evidence to prove the charge beyond 'all reasonable doubt'. In such cases it is difficult rather impossible to secure the evidence against the policemen responsible for resorting to third degree methods since they are in-charge of police station record which they do not find difficult to manipulate.

Consequently, prosecution against the delinquent officers generally results in acquittal. This difficulty was considered by the Supreme Court also in a series of cases and it observed that the situation required amendment of law relating to burden of proof in the law of evidence.

The law relating to burden of proof is contained in sections 101-114 of the Indian Evidence Act. The general principles as deductible from these sections is that the prosecution is under a mandatory duty to prove the essential elements of the offence charged against an accused person beyond all reasonable doubt. On the suggestions of the Supreme Court in Pemsagar Yadav case,1 the Law Commission in its 113th Report recommended the insertion of a new section as section 114B in the Indian Evidence Act.

The Commission recommended that in a prosecution of a police officer for an alleged offences of having caused bodily injury to a person, if there was evidence that the injury was caused during the period when the person was in the custody of the police, the Court may presume that the injury was caused by the police order having the custody of that person during that period.

1. AIR 1985 SC 446.

The Commission further recommended that the court, while considering the question of presumption, should have regard to all relevant circumstances including the period of custody, statement made by the victim, medical evidence and the evidence which the Magistrate may have recorded. The Supreme Court again considered this question in a recent case1 and observed that where the admitted facts of the case indicate that victim was taken in custody and later, on the next day if he was found dead near the police post, the burden was clearly on the State to explain how the victim sustained those injuries which caused his death.

The Court again amphasised the need for change of the rule of burden of proof in such cases. It is a matter of regret that inspire of the Law Commission's recommendations and the Supreme Court's observations in several cases the requisite amendment in the law of Evidence has not been made. In view of the sharp rise in police atrocities and custodial violence, tortures and death, it is of utmost importance to amend section 114 of the Indian Evidence Act as suggested earlier.

In this connection it is worth mentioning that the Parliament amended the Evidence Act for raising presumption in the case of rape in custody and down death with a view to meet the growing incidence of sexual exploitation during custody. The Parliament by amending the Act inserted sections 114A and 114E of the Indian Evidence Act, 1873 empowering the Court to draw presumption against the accused in prosecution for rape and dowry deaths.

This legislative step was taken to meet the technical plea of lack of evidence in rape and dowry cases. There appears to be no reason as to why the same principle should not be extended in the case of custodial crimes.

1. 1993 (2) SCC 346.

There is need for making further provisions in the laws to eliminate the possibility of torture and beating in custody during interrogation. Police is, no doubt, under a legal duty to arrest a criminal and to interrogate him during the investigation of the offence, the law does not permit use of third degree methods or torture of accused in custody but the police generally resorts to these methods with a view to solve the crime.

It is a legitimate right of the police to arrest a suspect on receiving some credible information, or material, but the arrest must be in accordance with the law and the interrogation should not be accompanied with torture and use of third degree methods. The interrogation and investigation should be in true sense and purposeful to make the investigation effective. By torturing a person and using third degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid.

If the custodians of law themselves indulge in committing crime, then no member of the society would be safe and secure. In this situation, it would be worthwhile to amend the law to eliminate or at any rate minimise, the chances of torture or injury or death in custody.

When a person is arrested without warrant for a cognizable offence it should be imperative for the police officer to obtain from the accused the name of any relative or friend whom he would like to be informed about the arrest and the police should get in touch with such relative or friend and inform him about the arrest1.

When the accused is produced before the magistrate it should be mandatory for the Magistrate to enquire from the arrested person whether he has any complaint of torture or mal-treatment in custody and he should further be informed that he has a right under section 54 of the Code of Criminal Procedure to be medically examined2 Very often the arrested person is not aware of this right and on account of his ignorance he is unable to exercise his right before the Magistrate even though he may have been tortured or mal-treated by the police in the lock-up.

It is, therefore, necessary that the law should be amended and a mandatory duty should be amended and a mandatory duty should be cast on the Magistrate to enquire from the arrested person about the torture and remind him of his right of medical examination under section 54 of the Code.

1. Sheila Barse v. State of Maharashtra, AIR 1983 SC 378, para. 40.

2. Ibid.

Torture or beating of an arrested person in the lock-up is generally carried on behind the closed doors and no member of the public is permitted to be there and instances are not wanting where even the family members of the arrested persons are not allowed to meet them. In developed countries it is well recognised right of an arrested person to insist for the presence of his counsel during the course of interrogation while in custody. The presence of counsel would deter the police from using third degree methods during interrogation.

The Cr. P.C. does not confer expressly any such right on the accused but the Apex Court while interpreting the scope of Articles 21 and 22 has held that the accused is entitled to have his counsel during interrogation.1 The law declared by the Supreme Court is the law of the land under Article 141 of the Constitution. Since the decisions of the Supreme Court are not brought to the notice of each and every police officer, it would be proper and appropriate to amend the law in this respect. Amendment of sections 41, 50 and 56 of the Criminal Procedure Code may be necessary to secure the aforesaid objectives.

1. Nandini Satpathi v. R.L. Thamani, 1968 Cr LJ 968, paras. 58, 59, per Krishnaswamy Ayyar, J.

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