Report No. 152

Issues for Consideration

In view of the above discussion the following issues would arise for consideration:

1. Should the police continue to have unrestricted power to arrest any person at any time and at any place without any order or permission from the Magistrate or any other court?

2. Should the law be amended to confer right on the suspect who is detained for interrogation to insist for the presence of his counsel at the time of interrogation? If the amendment is made, will it not delay and interfere with the investigation of crimes?

3. Should the law provide that on the arrest of a person it should be mandatory for the police officer or any public servant holding the custody of a person to get him medically examined before commencing the interrogation?

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

5. Should the law provide for an independent agency for hooding enquiry into the complaint of torture of a person in police custody or death, if so, what should be the agency? Will it not serve the purpose if the enquiry is held by the Chief Judicial Magistrate or Metropolitan Magistrate in case of torture and injury and by the Sessions Judge of the District in case of death? Should they have the liberty to obtain the assistance of the Criminal Investigation Department or any police officer of their choice?

6. Should a Criminal case be registered against the delinquent police officer or the public servant, if a prima facie case of torture, injury, or death is found without any further investigation and without obtaining sanction of the Government for the prosecution of such delinquent public servants under section 197, Cr. P.C.?

7. Should there be provision for the award of compensation by the Government on no fault basis in the case of death or injury caused to a person? If so, what would be the appropriate amount to be fixed. Should the Court trying the aforesaid delinquent officer have the power to award final compensation to the victim or the dependants of the victim, notwithstanding their right to obtain damages in tort before Civil Court?

8. Whether the law should provide for interim compensation in a case where as a result of the enquiry, prima facie case of torture, injury or death on account of injury caused in custody is made out?

9. Should the law confer power on the Government to recover the amount of compensation from the delinquent officer?

10. Will the aforesaid steps not affect the functioning and morale of the police adversely in investigating cases and further whether it will result into non-investigation of crimes which will affect public order? What measures should be taken to avoid these situations?

The aforesaid issues arise out of our concern for the protection of the poor people who are generally subjected to torture in custody. The Law Commission has prepared this working paper indicating the various aspects of the problem which is neither exhaustive nor final; instead it is tentative.

The Commission will be obliged if the considered opinion of the Jurists, Judges, Lawyers, Law-teachers and non-Governmental organisations, Human Rights Activities are available to it as the same will be helpful in formulating the Commissions recommendations to the Government for amending the laws. Any suggestion for amendment of law or enactment of a new law or formulating of any scheme in this respect which would advance public interest would be welcome.