Report No. 152
Investigation of Complaint in Custodial Offences
As the law stands today, a complaint against the police in respect of torture, injury or death in custody is also required to be investigated by the police but such enquiry cannot be effective and free from bias.1 In order to meet the situation, in some cases, investigation against the police torture have been entrusted to the Central Bureau of Investigation but, under the existing law, CBI cannot take up the investigation of all cases of custodial crimes since the State Governments consent to such investigation may not be available in many cases.
The ideal course would be to have an independent agency for holding investigation and enquiry into such complaints, and this may be entrusted to the proposed Human Rights Commission. But, in the absence of such commission, it would be necessary to have an independent agency to deal with such matters in an objective and fair manner. One method may be to authorise the courts to hold enquiry into such complaints. Under section 176 of the Code, enquiry in case of death of an arrested person while in custody is made by a Magistrate empowered to hold such inquest.
The object of this enquiry is to verify the cause of death. This enquiry is judicial but the Magistrate does not function as a court the inquest report or statement contained in the enquiry report do not constitute substantive evidence2 The Commission is, however, of the opinion that in case of complaint of torture or injury caused in police custody, the Chief Judicial Magistrate who is head of the Magistracy in the District should have the power to hold enquiry into the complaint and for that purpose he may obtain the assistance of the police officers of his own choice.
In cases of custodial death, the Sessions Judge should be invested with authority to enquire into the matter. If on enquiry by the Sessions Judge/ Chief Judicial Magistrate/Metropolitan Magistrate, a prima facie case is made out, the Sessions Judge or the Chief Judicial Magistrate should be competent to direct for the registration of cases against the delinquent officers. This method may ensure awareness and objectivity in holding the enquiry into the complaints against the police.
1. State v. P.S. Yadav, AIR 1985 SC 146.
2. (1955) 1 SCR 1083.
Under the law no public servant, including police officers, can be prosecuted for an offence without the sanction of the State under section 197, Cr. P.C. No doubt, there are a number of decisions of the court that torture, injury or causing death in custody is not within the discharge of official duties of a police officer and section 197 is not attracted in such cases out invariably a technical plea of absence of sanction under section 197, Cr. P.C. in raised by the members of the police force facing the prosecution.
The controversy in regard to necessity of sanction causes lot of delay in the trial of cases. It would therefore, be necessary to amend section 197 of the Cr. P.C. to obviate the necessity of sanction of Government for prosecution of police officer against whom a prima facie case is made out on enquiry by the Sessions Judge/Chief Judicial Magistrate. In order to achieve this object, a proviso would be necessary to be inserted under sub-section (1) of section 197 in the following manner:-
"Nothing contained in this section shall apply in case of custodial offence where a court on an enquiry is prima facie of the opinion that the accused public servant committed an offence of penal nature within his custody."
