CUSTODIAL DEATH: LEGISLATION AND JUDICIAL RESPONSE

CUSTODIAL DEATH: LEGISLATION AND JUDICIAL RESPONSE

This Article is written by Ananya Verma, student of Ramaiah College of Law.

Introduction

Custodial Death refers to violence in police and judicial custody; it may include death, rape and torture. There is no exact definition of ‘Custodial Death’ in Indian legislations, however, Custody is defined as, any point of time a person’s freedom of movement has been denied by law enforcement agencies such as arrest and death in custody is defined as, death occurring in some form of custodial detention, such as police cell or prison.

Custodial Death, here, means end of human life while in prison or under legal restrain. Section 167 of the Code of Criminal Procedure speaks about two types of custody i.e. police custody and judicial custody. As per section 167(1) of Cr.P.C, police custody can be granted for maximum period of fifteen days only, and it basically means police remand for the purpose of interrogation. Another type of custody as mentioned earlier is ‘judicial custody’ which means sending a person to jail or prison. According to Section 3(1) of The Prison Act, 1894, ‘Prison’ means any jail or place used permanently or temporarily under the general or special order of the State Government for the detention of prisoners.

Landmark Judgment in case of Custodial Deaths

The Hon’ble Supreme Court of India declared, any form of torture or cruel treatment would be offensive to human dignity and will infringe the fundamental right to life as mentioned in Article 21 of the Constitution, unless it is in accordance with the procedure prescribed by law.

In the case of D.K Basu vs. State of West Bengal (1997), the Supreme Court observed that using torture to impermissible and is offensive to Article 21 of Constitution. Therefore, as a result of which the court issued a list of guidelines in addition to Constitutional safeguard which should be followed in all the cases of arrest and detention. The guidelines are as follows:

  • The police person handling the interrogation or arrest they should carry clear identification and name tags with their designations. Also, the police personnel should maintain a register and interrogation must be recorded in a register.
  • The police officer carrying out the arrest should maintain a memo of arrest in which all the details related to arrest should be mentioned like the signature of any witness person, time, date and place of arrest.
  • A person who has been arrested and is being held in custody, that persons relative or friends must be informed about the arrest and where he/she has been detained. All these information will be maintained in an official diary like the name of officer handling the case, who has been informed etc.
  • The time, place of arrest and venue of custody should be notified by the police. If the friend or relative of the arrestee live outside the district then, the police station of the concerned are should telegraphically inform within a period of 8 to 12 hours after the arrest.
  • The person arrested must be made aware of this right to inform someone as soon as he is put under arrest or detention.
  • An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of his next friend to the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is.
  • The arrestee should be examined at the time of his arrest and injuries (if any)present on his/her body must be recorded at that time. The “Inspection Memo” must be signed by both of the arrestee and the police officer and its copy should be provided to the arrestee.
  • The arrestee should be medically examined by doctor every 48 hours during his detention by the panel of approved doctors.
  • Copies of all the documents including the medical report, inspection memo and arrest memo should be sent to Magistrate for his record.
  • The arrestee may be permitted to meet his lawyer during interrogation, but not throughout the interrogation.
  • A police control room should be provided at all district and state headquarters, in which all the information related to an arrest should be provided within 12 hours of the arrest. Information like reason of an arrest and the place of custody.

Article 21(1) and 22(2) of the Constitution are also relevant for these purpose, because their object is to ensure and prevent abuse of power of arrest and detention unless it is in accordance with the procedure prescribed by law. Both the Article referred has a vital importance to the theme of Custodial death issue.

India’s Initiative in Policy Formulation

According to the National Crime Records Bureau (NCRB) data, between 2001 and 2018, only 26 Policemen were convicted for Custodial Violence while 17,727 such deaths were recorded in India, and in 2019, 1,700 Custodial deaths were recorded in India. Apart from custodial death, more than 2,000 human rights cases were also registered against Policemen between 2000 and 2018 but, only 344 Policemen were convicted.  A very recent case of Custodial Death of George Floyd from US and the death of Jeyraj and Fenix, the father and son duo from Tamil Nadu, during Corona Virus lockdown has raised multiple concerns about the matter.  In 2016, the Former Union Minister of law filed a petition in the Supreme Court for India’s compliance to United Nations Convention against Torture (UNCAT). During the hearing of the case, the Law Commission of India submitted its 273rd Report recommending Government to ratify the UNCAT and also proposed the Prevention of Torture Bill 2017.

According to this Bill, if any public servant commits a torture then, punishment has been prescribed against them. This Bill also explains the term “Torture” which means, if any public servant tortures any individual for deriving any information or confession and hurts that individual grievously or tortures his life, health both mentally or physically then, all these will be considered as torture. The prescribed punishment for this act is 10 years. On recommendations made by National Human Rights Commission and Law Commission of India, a new Bill was drafted as ‘Prevention of Torture Bill, 2017’. The Bill still has few major loopholes and is pending before the Parliament.

Conclusion

Despite of several initiatives in recent years, torture continues to be endemic throughout India. It has become very common not only among Police officials but also among common people like, the incident of encounter killing of four suspects in the rape and murder of a young doctor, near Hyderabad was appreciated by everyone like Police, Politician, and common people. We do agree of the fact that Police Officials play a vital role in protecting the society from some mischievous people, but the police certainly have no right to inflict brutality on a helpless person under its custody ignoring the ‘Cannons of Law’.

Indeed, proper awareness among jail authorities and prisoners in such cases can prevent the further spread of this brutality. There is also a need for change in the system and behavior of police officials like developing good practice standards on training, systematic measures to improve prison conditions by installing CCTV camera, by allotting better trained and dedicated staff including medical staff.

 

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