Report No. 185
Section 114B: (As proposed in the 113th Report of the Law Commission). 267
This Section is not yet included in the Evidence Act, 1872 though recommended in the 113th Report of this Commission. Custodial violence leading to injuries, rape or deaths of suspects or accused has become very common in our country and the High Courts and the Supreme Court have been passing strictures against the police and awarding compensation to the person concerned or the families of the deceased.
While in police custody, third degree methods are employed to extract information or confession. The Human Rights Commission in its reports has also been referring to custodial violence as well as to custodial deaths and recommending compensation. When the police officers concerned are prosecuted, there is considerable difficulty in proving custodial violence and if the victim had died, it becomes more difficult.
Torture and ill-treatment (including rape) in police lock-ups, especially in the case of women came up for consideration in Sheela Barse v. State of Maharashtra : AIR 1983 SC 378. The Supreme Court gave several guidelines regarding need for presence of lady police officers, excluding other male accused, grant of legal aid and allowing the detainee to call a friend or a relative. Judicial officers have to make surprise inspections. In Nilabati Behara v. State of Orissa: AIR 1993 SC 1960, it was held that the safety of persons in custody has to be protected and the wrongdoer is accountable if a person is deprived of his life while in custody. There can be no plea of sovereign immunity.
In Joginder Kumar v. State of UP (AIR 1994 S.C. 1349) it was stated that the arrestee has a right to have his friend, relative or some other person informed about his arrest.
A letter of a Bar Association containing allegations of torture by police was treated as a writ petition in Secretary, Hailakandi Bar Association v. State of Assam: 1995 Suppl (3) SCC 736 and after rejecting the report of the Superintendent of Police regarding absence of injuries, the CJM was directed to enquire. In Kewal Pati v. State of UP: 1995(3) SCC 600, it was held that the Jail authorities have the responsibility to ensure life and security of prisoners.
In one of the classic judgments, the Supreme Court in D.K. Basu v. State of WB: AIR 1997 SC 610 referred to custodial violence by way of torture, rape and death in police custody or in police lock-up and held that such violence breaches basic human rights and Article 21 of the Constitution of India. Torture involves not only physical suffering but also mental agony. Eleven directives were issued to the police to prevent such torture. Failure to observe the directives could lead to departmental action as well as contempt and in regard to contempt, proceedings could be initiated in the High Courts. The requirements of Article 21 apply to police as well as para military forces and the Revenue intelligence or other governmental agencies.
In People's Union for Civil Liberties v. Union of India: AIR 1997 SC 1203, compensation was demanded in the case of two persons who were shot, in what are called, fake encounters at an isolated place.
Reference was in fact made by the Supreme Court to the 113th Report of the Law Commission in State of MP v. Shyam Sunder Trivedi: 1995(4) SCC 262. It was pointed out that in cases of custodial death or police torture, it is difficult to expect direct occular evidence of the complicity of the police. Bound as they are by the ties of brotherhood, often police personnel would not come forward to give evidence and more often than not, police officers coul.- as happened in that cas.- feign total ignorance about the matter. Courts should not, in such cases, show an exaggerated adherence to the principle of proof beyond reasonable doubt.
There will hardly be any evidence available to the prosecution to implicate the police. The Court called deaths in police custody as the "worst kind of crimes in civilized society, governed by rule of law. Men in 'khaki' are not above the law." Section 330, 331 of the Penal Code make it punishable for persons who cause hurt for the purpose of extorting the confession by making the offence punishable with sentence upto 10 years of imprisonment but convictions, in such cases, are fewer because of the difficulties in proving evidence. The Court observed:
"Disturbed by this situation, the Law Commission in its 113th Report recommended amendments to the Indian Evidence Act so as to provide that in the prosecution of a police officer for an alleged 270 offence of having caused bodily injuries to a person while in police custody, if there is evidence that the injury was caused during the period when the person was in the police custody, the Court may presume that the injury was caused by the police officer having the custody of that person during that period unless the police officer proves to the contrary. The onus to prove the contrary must be discharged by the police official concerned."
The Court further observed:
"Keeping in view the dehumanising aspect of the crime, the flagrant violation of the fundamental rights of the victim of the crime and the growing rise in the crimes of this type, where only a few come to light and others don't, we hope that the Government and legislature would give serious thought to the recommendation of the Law Commission and bring about appropriate changes in the law..."
Now the 113th Report was submitted to the Government on 29.7.1985 and it is unfortunate that, even after the observations of the Supreme Court in the year 1995, the recommended provision of Section 114-B has not yet been incorporated in the Evidence Act. It is to be seen that the Section as proposed only used the words 'may presume' and not the words 'shall presume'.
[Even after 1995, there are a number of cases decided by the Supreme Court on this aspec.- see Watchdog International v. Union of India: 1998(8) SCC 338, Murti Devi v. State of Delhi: 1998(9) SCC 604 and Union of India v. Luithukla: 1999(9) SCC 273].
The text of Section 114B as recommended in the 113th Report was as follows:
"114-B. (1) In a prosecution (of a police officer) for an offence constituted by an act alleged to have caused bodily injury to a person, if there is evidence that the injury was caused during a period when that person was in the custody of the police, the court may presume that the injury was caused by the police officer having custody of that person during that period.
(2) The court, in deciding whether or not it should draw a presumption under sub-Section (1), shall have regard to all the relevant circumstances including, in particular,
(a) the period of custody,
(b) any statement made by the victim as to how the injuries were received, being a statement admissible in evidence,
(c) the evidence of any medical practitioner who might have examined the victim, and
(d) evidence of any magistrate who might have recorded the victim's statement or attempted to record it."
We reiterate the recommendation, subject to adding a third subSection as stated below. We also feel that the words 'or attempted to record' must be deleted at the end of Section 114B(2)(d) and must be brought after the word 'recorded' in the same subclause and before the words 'the victim's statement'.
Sri Vepa P. Sarathi, has suggested that, if the police follow the procedural law in Section 41, 151 CrPC, and Section 56, 57 and 76 are strictly followed, there will be no violation of human rights. But, today, rules are observed more in breach.
In the light of D.K. Basu, we are of the view that another subSection (3) be added below the proposed Section 114B that 'police officer' in this Section means, officers belonging to police, the para military forces and the officers of Revenue Department such as those of the Customs, Excise and the officers under Revenue Intelligence.
We recommend that a new Section 114B be inserted as follows:-
"114 B. Presumption as to bodily injury while in police custody.- (1) In a prosecution of a police officer for an offence committed by an act alleged to have caused bodily injury to a person, if there is evidence that the injury was caused during a period when that person was in the custody of the police, the Court may presume that the injury was caused by the police officer having custody of that person during that period.
(2) The Court, in deciding whether or not it should draw a presumption under sub-Section (1), shall have regard to all the relevant circumstances including, in particular,
(a) the period of custody;
(b) any statement made by the victim as to how the injuries were received, being a statement admissible in evidence;
(c) the evidence of any medical practitioner who might have examined the victim; and
(d) evidence of any magistrate who might have recorded or attempted to record the victim's statement ."
(3) For the purpose of this Section, the expression 'police officer' includes officers of the para-military forces and other officers of the revenue, who conduct investigation in connection with economic offences."