custody
source: https://sabrangindia.in/

Introduction:

Let my voice be heard about the statistics of police brutality to date. So everyone is certainly aware of George Floyd’s death due to police brutality. As a consequence, the US is introducing Police Reform Bill against custodial torture & National Database for Police Misconduct to record their unrighteous as well as unlawful act against the citizens of the US. If we talk about India, you will be stunned to know the statistics magnifying the custodial violence in the country.

According to National Crime Records Bureau, Custodial Violence has led to 1022 deaths in the year 2006-2016 while the year 2019 alone holds more than 1007 deaths & many more unreported cases so far on account of torture, rape, foul play, etc. in a custody. And only 5% of policemen have been convicted against their brutality. We are familiar with the custodial death of father-son duo in Tamil Nadu recently. During these tough times amid COVID-19, the horrific incident took place i.e. the demise of Jayaraj & Bennicks, due to police barbarity as they were sexually ill-treated in police custody.

Retrospective Laws:

There are acts like Indian Police Act, 1861 (not amended so far), and several sections of IPC i.e., Section 188 (disobedience to order duly promulgated by public servant), Section 388 (extortion by threat of accusation), Section 506 (punishment for criminal intimidation). But having such laws benefitted justice for victims so far against custodial violence? Moreover, what legal actions can the State take against the torture by Senior police officers?

These retrospective laws need to be incorporated. Several amendments will be required in the Indian Penal Code, Criminal Procedure Code, and the Indian Evidence Act. Indian Police Act, 1861 should have fresh directions & to be amended mentioning the executive powers & limitations of the police officers & the punishment or suspension to be held against them if violated the law.

Introduction to Anti-Torture Bill :

Let me talk about the steps taken or not taken or still taking up against Custodial violence in India. United Nations Convention Against Torture (UNCAT) was adopted by the United Nations General Assembly in 1984 that aims to prevent torture, cruelty, inhumane & indignity acts against citizens by police officers. Since India is a member of the UN, signed UNCAT in 1997 but not ratified the concerned laws yet. For the adoption of their laws, the Indian Parliament has to enact a bill. In 2010, Anti-Torture Bill ( a draft law) was passed in Lok Sabha for protection of human dignity which defines the word ‘Torture’ comprehensively.

However, the bill is not passed yet by Rajya Sabha. Discussions are still afoot for the bill to be enacted. Suggestions were made by Rajya Sabha Select Committee Suggestions in favor of UNCAT such as the expansion of the definition of the word ‘Torture’; severe punishments for torturing women and children, an individual body or authority to be set up to investigate the matters of Custodial Violence.

In 2017, Law Commission stated that they’re genuinely considering the bill. But the bill has not ratified as yet. Now, Time is the only witness when the bill against custodial violence will come up. Punishment is broadly prescribed in the bill of the prevention of torture. Indian Parliament should enact the bill soon that will stand up against Custodial violence.

Some cases of Police Brutality :

In the case of Rudul Sah v. State of Bihar (1983), Rudul Sah was illegally detained for 14 years. Later the writ was issued, he got released and the compensation was given to him.

In the case of Saheli Kumar v. Commissioner of Police (1989), A Police officer along with a landlord molested the lady tenant & murdered her 9-year old son. For this, the Supreme Court had awarded compensation to her.

In both these cases, the compensation was awarded to the petitioners but no legal actions were taken against the concerned policemen.

The right to live is considered a fundamental right. But with no dignity, life is worthless. Human lives are worthwhile when they hold their dignity & rights & freedoms. Awarding the compensation, what justice made to these fellows? Could they get their years spent imprisoned without any offense back?

Article 22 of the Indian Constitution says no person who is arrested shall be detained in custody without any reason or being informed to another person of his relation. However, in Joginder Kumar V. State of UP (1994), the Senior Superintendent of Police called the petitioner who was an advocate, for making inquiries in a case. But later apprehended him without any reasonable justification. The police exceeded the limitations of powers provided to him & also violated the fundamental rights of the petitioner by law.

In the case D.K. Basu v. State of West Bengal (1998) conceding the increasing number of Custodial violence & to prevent the powers of arrest, the guidelines were issued by Supreme Court to be followed by every police officers.

These guidelines are:

  • A clear mark of identification of the police officer
  • Memo of arrest to be prepared and to be attested by at least one witness from the family or a respectable person of the locality.
  • Any member of the family or any person having an interest in the detained person to be informed about the arrest made.
  • Time, place of arrest & venue of custody of the detained person must be notified by the police.
  • The person arrested should be informed of his rights.
  • Diary entry about the arrest should be made by a police officer.
  • Body of the arrestee to be examined, if he so requests.
  • Medical examination of the arrestee by a trained doctor.
  • All the documents related to arrest to be sent to Magistrate.
  • An arrestee must be allowed to meet his lawyer.
  • Police control room to be established in every district. Details of the arrest to be sent to the control room and should be displayed on a conspicuous notice board of the control room.

Despite having such guidelines & rights to the detenu, the number of cases of Custodial violence doesn’t stop counting. The arrestee is entitled to consult a lawyer to defend himself. However, in the case of the father-son duo that I’ve mentioned earlier, an advocate went to meet them in the police station but he was denied access.

Recently a 13-year old girl was raped & got pregnant by a Police cop in Odisha. Many detainees are shot dead by encounter killings. Prior to the prosecution, such accused detainees are declared convicted & have been denied a fair trial by the police officers. Do they have the power to decide who the criminal is? Furthermore, no charge sheet or merely any has been filed so far against the concerned officers.

Interpretation of Custodial violence in-depth:

Surprisingly, people support police brutality when it comes to a person who is alleged of an offense. In the rape case of Dr. Priyanka Reddy, the four accused were shot dead by the encounter. The Police Commissioner encountered the four accused denying the trial which was even held by fast track courts.

Justice may have prevailed but the rights of the accused were snatched along with their lives. People around the country supported this encounter proudly. It is all about the mentality of the public. People think that criminals deserve cruelty by police. Nonetheless, public outrage can be seen when an innocent is being tortured or is arrested for minor offenses. But by law, Everyone is entitled to get the defense & the fair trial, whether he is guilty or not.

Article 21(3) of the Indian Constitution states no person accused of any offense shall be compelled to be a witness against himself. The accused person is prevented against incriminating himself under duress. The police cannot force the accused person to confess his offense by torturing him in custody. The accused person is entitled to get the defense before the court.

All of us know about the Nirbhaya case in which four rapists were hanged to death this year. Just so you know, Ram Singh who was accused of the rape other than the four in the same case was found dead in his cell in Tihar Jail. What happened to him? Who killed him? Who is truly responsible for his demise? Ok, let it be. But did the people even care about him? No, because he was criminal in their eyes.

Role of Magistrate:

Now if Prison the Anti-Torture Bill is implemented then what? Look, adopting the laws alone will not be effective for eliminating Custodial torture. We need plenty of changes in our society. Even the role of Magistrate is quite substantial. “Prison restrictions amounting to torture, pressure or infliction, beyond that awarded by the court must pass the test of scrutiny with reference to Article 21”; Sheela Barse v. the State of Maharashtra, AIR 1983 SC 378.

As per section 176(1A) of CrPC, every custodial violence must be investigated by a Judicial Magistrate. But merely any cases of Custodial violence have been entertained by Judicial Magistrate. No police were arrested so far against any offenses of Custodial violence. At most, some police officers have been suspended which is a usual response by the State as it is not affecting the increasing number of Custodial violence. The absence of evidence in Custodial violence prevents the victim to get justice. If any case gets produced before the court, the witness often backs out under threats of the concerned police in the case. The magistrate shall offer the protection to such witnesses to give evidence before the Court against police officers.

According to Article 22, every person who is arrested & detained in custody shall be produced before the Magistrate within 24 hours. Therefore, it is the role of Magistrate to not only look upon the matters but also the medical examination of the detainees. When the accused is inspected, Magistrate should be aware that there are no injuries or trails in the body of the accused meted out by police. Section 167 widely explains the procedure of investigation by Magistrate even in the cases of preventive detention. Magistrates should be clung to their duties.

Need for the elimination of Custodial violence:

A police force should be divided into law & order. They must be confined to their powers. They should not act beyond their authority. People at large must be aware of their rights & limitations of the powers of police. Custodial violence should not be performed no matter what. Fake encounters, custodial torture, conviction without trial, punishment without being heard, detained without any reasonable justification, misconceptions of the powers of police in the minds of people, leads to human indignity.

Due to this, the importance of legislation gets eroded. As far as the security of the society is concerned or in case of preventive detention or if the truth needs to be revealed out in the severe offenses, the special & effective probe by Special authority must be held for the matter. Police officials must take every step with the prior permission of the State in the concerned matters. It is also observed by the Court that the polygraph/Brain fingerprinting test amounts to torture and it violates right against self-incrimination. So it should be prohibited unless the consent is given by the person who is being tested or ordered by the Court.

The Supreme Court delivered a historic order in 2006 on police reforms. It stated, among other things, that every State should have a Police Complaints Authority where any citizen can lodge a complaint against policemen for any act of misdemeanor. However, only a few states such as Kerala, Jharkhand, Haryana, Punjab, and Maharashtra in India have implemented the order. Other states have not taken the matter seriously.

Final Thoughts

The Court has to be vigilant to ensure the liberty & human dignity of the detained person. There should be an individual body or authority who would investigate the cases of Custodial violence & could take legal actions against such police officers provided that the methods of third-degree torture be avoided by them to ascertain the truth of the accused or the victim.

Have you watched the movie ‘Shahid’? If not, do watch it. There’s a dialogue in this movie. “If you want to change the system, be the part of it.” And we, the aspiring law students or lawyers being the part of it, will certainly be going to change it. Till then the concern is what provisions will be introducing to eradicate the Custodial violence in the upcoming cases.


Author:

madhu modi Madhu S. Modi | M.K.E.S College of Law, Mumbai, Maharashtra

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