Custodial Death and provisions in India
Introduction:
The concept of custodial death are not new there has been several custodial violence but some of came in limelight and some of them not. There has been the concept of “Rule of Law” means that no person shall be deprived of his/her liberty except with the authority of law and shall be equal before the law. Police are considered to be the representative of a state whose sovereignty lies in the Indian people are public servants and the police station is a public property. The concept of public torture were mostly initiated in our cinemas there are many films which initiate that police torture are considered to be good for the criminals. So, the question is that what the role of police is? Basically the role of police is to apprehend the criminals, to protect law abiding citizens and to maintain law and order. In India torture is not expressively prohibited as per civil liberties there has several custodial death in the country i.e. from 2001-2018 there has been 1727 custodial deaths from which 26 convictions has been there still major cases were not came in front due to several issues and as per The Hindu “a total of 1731 people died in custody in India during 2019”, so this basically shows that how police hide such things and use their power in wrong manner. The basic job of police is to help people and to maintain law and order in the public but these police officials has been using their power in wrong manner. So, the article mainly focuses on certain things i.e. Provisions under legal system to protect a person from custodial death, Prevention of torture bill and Steps taken by Supreme Court in custodial violence.
II Provisions under the Indian Legal System: to protect a person from custodial Torture
In India case of custodial violence has been growing so there are several legislatures which would protect a person from custodial torture . So, following are the provisions:
- Article 20(1) Ex post Facto law:
It basically describes the Ex post facto law which basically means that no person shall be convicted of an offence except for violation of law in force at the time of commission of an offence nor be subjected to a penalty greater than that which might have been inflicted under the law in face at the time of commission of an offence.
Legal maxim: Nulla poena Sine lege so as per this maxim which profound that no man shall made to suffer except for distinct breach of criminal law.
As the concept of ex post facto law has been stated in Indian constitution but derived from Article 11(2) of Universal declaration of human rights i.e. no one shall be held guilty of any penal offence on account of any act omission which did not constitute penal offence under national or international law As when it was committed nor a heavier penalty be imposed similarly Article 15 of International Covenant on Civil and political rights.
If subsequent to the commission of the offence, provision is made by law for imposition of lighter penalty the offender shall be benefited thereby
- Article 20(2) Protection against Double Jeopardy:
As no person shall be prosecuted for more than once basically it is based on the maxim nemo debet bis vexari, si constat curiae quod sid pro una et eadem causa which means that no person shall be vexed twice if it appears to the court that it is for one and the same cause. As not in the constitution but also in the general clause Act 1897 under section 26 same concepts has been described.
- Article 20(3) Protection against self incrimination:
Under this Article it has been derived that no person accused of an offence shall compel to be witness against himself. As in the case of Nandini Sathpathy v. P.L Dani as in this case it was said by the court that there in case if there has been compel statements taken by the police a sit would result in violation of Article 20(3) of the constitution and that would amount to torture by the police officer
Similarly there are different sections that have been defined under different legislatures dealing with protection person from police torture:
- Section 163 of Criminal Procedure Code:
The section basically defines that no inducement, threat should be offered by the police officer for getting any sought of confession from the accused.
- Section 164(4) of Criminal Procedure Code:
Any such confession shall be recorded in manner provided in section 281 of Crpc i.e. recording the examination of an accused person and shall be signed by the person making that confession and the magistrate shall make a memorandum at the foot of such record.
- Section 348 of Indian Penal Code,1860
Whoever wrongfully confines any person for the purpose of confession or for any sought of information that would result in an offence under Indian Penal Code. As the accused cannot be compelled to make statement against his/ her will.
- Section 24, 25,26 and 27 of Indian Evidence Act:
Basically these acts are describing the same thing i.e. no police officer shall compel any accused for making any sought of confession through inducement or any kind of pressure will not amount to any evidence in court. Similarly if the person is in the custody of the police that will not amount to any evidence as per section 26 of the Act.
So these are certain sections which ensure the protection of person in the police custody but still it is unfortunate that these cases still happen in India and the people at the top positions are looking these cases and not reacting towards them.
III Provisions of Anti Torture Bill 2010:
As with the case of George Floyd which happened in US lead to several Violent protest which result that Congress introduced Police reform Bill and to maintain a national database for police misconduct as these bill were introduced but when it will become the law time will tell. Similarly in India Anti torture Bill was introduced in the year 2010. Being India a signatory member of the United Nation Convention Against Torture that was formed in 1975, so to apply any law of UN parliament has to make the law for it. So, to make UN bill a law a bill was introduced in Lok Sabha i.e. prevention of Torture Bill as in the bill the word “Torture” has been expanded in simpler manner it basically means that if any pubic officer for the means of deriving any information or taking out any confession had grievously hurt in that case it will be considered as “Torture” and Punishment under the bill is 10 yrs. So the bill goes to Rajya Sabha after passing but still there has been formation of Rajya Sabha select Committee and certain suggestion were given by the committee:
- Expansion of Definition Torture
- Torturing woman or child should have severe punishments
- Setup an Independent authority for Investigating all three cases
Still the bill is pending in Rajya Sabha since 2010 but in 2017 according to law Commission if there has been any law regarding torture that would amount major changes in following acts :
- Indian Penal Code, 1860
- Criminal Procedure Code, 1973
- Indian evidence Act, 1872
So there has been no proper law regarding the police torture and from several years police has been given immense power and they have been using these powers in the wrong way as no one is above the Constitution but still these cases are increasing with time and it’s high time that the government should take serious action against police officials and these torture should stop.
IV Major Judgments by Supreme Court on Police Violence and Custodial Death:
There has been several cases regarding police violence and custodial death in India but following are major judgments by Supreme Court:
- Rudul Shah v. State of Bihar, 1984
As in this case was kept in this the petitioner Rudul Shah was kept in the jail for 14 yrs after filing the writ of habeas Corpus under Article 226 of the constitution demanding for immediate release.
The case is considered to be important because for the first Supreme Court realize to stop police Violence and to look each constitutional right of every person.
- Saheli v. Commissioner of Police, 1989
In this case a Zamindar and police together misbehave with woman and a 9 year child that would result in the death of the child as a result the court provides the compensation of Rs 75000.
The case is considered to be important because SC made delhi administration gave an option to recover the amount from the Police officer.
- Nilbati Behra v. State of Orissa, 1993
As in this case the lady was arrested by the police and in the morning the lady was found dead on the railway track with several injuries on her body as in this case the petitioner was awarded a compensation of Rs 1, 75,000. As in this case SC said providing compensation is duty of police officer and not State.
So, by reading these two cases one thing has been made clear that SC didn’t followed and specific criteria while awarding compensation.
- Joginder Singh v. State of UP, 1994
In this case SC said that if any arrest would be made without any justification that arrest would be considered as illegal. SC said officer has the power of arrest but reasonable justification is required before making an arrest.
- K Basu v. State of West Bengal, 1997
As in this case proper guidelines have been given by the supreme court in relation with the police officer while making an arrest:
- The police officer should carry clear identification and name tags with their designation
- Arrest Memo under which it includes all information of Arrest, time date and place of Arrest.
- If a person has been arrested in that case other person i.e. his known should be clear about the arrest
- Inspection memo i.e. at the time of arrest if any kid of injuries or any health condition of the arrestee need to be included in inspection memo
- Medical examination need to be done in every 48 hrs.
- As all the copies of Arrest memo and inspection memo need to be given to the magistrate
- An arrested person can consult the lawyer
- In every district and state headquarter ther should be Police Control Room as all the details of the arrest need to be submitted within 12 hrs of arrest and need to be displayed.
So, in the case of Sheila Barse v. State of Maharashtra or in the case D.K Basu v. State of West Bengal all the guidelines are stated but still there has been cases of custodial violence in our country.
V Conclusion:
So by looking at these case and certain laws this is clear that sill there has been fault within our system which shows that our system has not been working in proper condition because if there has been proper working there would not been case of Jayaraj and Fenix this is considered to be loss of democracy. If these violence need to be stopped so stricter laws need to be made and proper agencies need to be established so that they can look at they can look at the police working in the proper manner right now there has been no independent agencies which result in several custodial death.
BY- Deepankar Chugh
