CUSTODIAL CRIME IN INDIA

SUBMITTED TO :Mr. MOHD. ATIF KHAN

FACULTY: CODE OF CRIMINAL PROCDURE

SUBMITTED BY : SARA PARVEEN

SEMESTER VII

ROLL NO. 130

HIDAYATULLAH NATIONAL LAW UNIVERSITY,

RAIPUR

AcknowledgementsThis project has not only been a result of earnest research and hard work but also the constant

support and guidance of my teacher, Mr. Mohd. Atif Khan whose efforts and help throughout the

course of my project rightly deserve a mention, for providing me with the opportunity for

exploring a new side of the world of criminal law . Sir, I am grateful to you for providing me

with such an interesting topic that has enhanced my knowledge about the subject manifold.

My thanks to the staff and administration of HNLU for the infrastructure in the form of our

library and IT Lab that was a source of great help for the completion of this project.

Sara Parveen

(Semester VII)

Contents

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Research Methodology

Research Questions

Objective

Hypothesis

Mode of Citation

Scope and Limitation

Source of Data

Introduction

Custodial Crimes in India: A Historical Perpsective

Legal Framework: Custodial Violence and Custodial Death

Indian Constitution and International Conventions

Constitutional Safeguards for the Accused

Punitive Provisions In Criminal Law And Procedure

Custodial Jurisprudence: Role of Judiciary

Conclusion

References

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Research MethodologyThis project report is an analytical and descriptive study on Secondary

sources have been referred to and electronic sources have been used at large to gather

information about the topic.

Books and other references as guided by the faculty of have been useful in giving this project

its basic structure and details. Websites, article and dictionaries have also been used.

Footnotes have been provided wherever needed to acknowledge the source of information.

Research Questions What is custodial crimes and what are the legal safeguards to it ?

What are the provisions in criminal code of procedure, 1973 to from protection of custodial

crimes ?

What are the various guidelines given by apex court of law so as to prevent custodial

crimes ?

Objectives To enumerate the historical background of custodial crimes in India.

To study the legal framework which provides for safeguards for the accused who is in

custody.

To highlight specific provisions under the Criminal Procedure Code, 1973 for protecting

the rights of the accused and for securing his interest.

To enlist the various guidelines and directions given by the Supreme Court from time to

time with regards to custodial violence.

To highlight the shortcomings in the law at present and to suggest suitable measures for

curbing custodial crimes.

HypothesisComplaints of abuse of power and torture of suspects in custody by the police and other alw

enforcing agencies have been the concern of the society.custodial crimes and torture of persons

in police custody are heinous and revolting as they reflect betrayal of custodial trust by a public

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authority against the defenceless citizen, such practices violate fundamental rights and human

rights. There is a pressing need to control this malady. The victims of custodial crimes, torture,

injury or death, mostly belong to the weaker section of our society, the law comissions and

courts of law considered it necessary to take up this matter sou mom for in depth study and to

provide guidelines to prevent such atrocities.

Mode of CitationHarvard Blue Book

Scope and limitation

The project basically emphasis as what type of torture and crimes are taking place

inside prison cells and under the custody of policed on the accused person. Also

the project deals with the historical perspective of the project and what role does

the court and judiciary plays for prevention of custodial crimes. The project is

scarce in dealing with much of the cases related to the subject.

Source of Data Books and interenet research have been the source of information for this project. Also footnotes

and bibliography as per requirement of the project have been mentioned wherever needed.

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Introduction“If the custodians of law themselves indulge in committing crimes then no member of the

society is safer and secure.”

- The Apex Court; Bhagwan Singh v. State of Punjab

Article 21 of the Constitution provides that no person shall be deprived of his life and personal

liberty except according to procedure established by law, which is an inbuilt guarantee against

torture or assault by the State or its functionaries. The Code of Criminal Procedure also provides

the safeguards against legally questionable detention by laying down the procedure to be

followed by the police while making arrests. However, torture and assault have become a part of

police ways unfortunately and in many cases custodial deaths have been found to be little short

of ‘custodial murder’.

Custodial deaths raise serious questions about the credibility of the Rule of Law and

administration of criminal justice system. An offender has every right to be tried and punished in

accordance with the law and any punitive action taken outside the ambit of law is illegal.

Besides, no matter how heinous the crime may be, and howsoever dangerous be the criminal, he

or she has every right to be treated with human dignity. Despite inherent rights vested in the

accused, the number of custodial deaths is on a rise and it seems that many a times such deaths

go unchecked, uninvestigated. Whenever death occurs in custody, it raises the public interest and

attracts media attention. The Magistrate inquest is mandatory for any death of a person in

custody to ensure examination of the circumstances leading to death. Beyond Magistrate’s

inquest and in recent year’s information to Human Right Commission, however, there is no

formal public scrutiny of in-prison deaths and under such situations many avoidable factors

leading to death remains unexplored. The National Human Rights Commission received 1,473

cases of death in judicial custody, 124 cases of death in police custody and 2 cases of death in

para-military/defense forces custody during the period of 2006 – 2010.1

1NHRC Annual Report of 2010; Available at: http://www.nhrc.nic.in/Documents/AR/NHRC_Annual_Report-09-10_Eng.pdf.

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This project aims at disclosing the reality about custodial deaths and custodial violence in India.

The project seeks to unfold the legal rights guaranteed to the accused and the punitive provisions

applicable for those government authorities who engage in such heinous activities.

CUSTODIAL CRIMES IN INDIA: A HISTORICAL

PERSPECTIVEThe phenomenon of custodial crime is not a new in India. We had reference of Torture and

violence with the police in India, even since the Vedic age (2000-1400 B.C.). Theordeals of fire,

water an single combat were used. In the Epic period (1400-800 B.C.)torture was practiced on

prisoners by the police. Torture in various forms was widely prevalent in age of laws and

philosophy (800 B.C. -320 B.C.). Kautilya’s Arthasatra speaks about various kinds of torture

such as burning of limbs, tearing by wild animals, tramping to death by elephants and bulls,

cutting of limbs and mutilation etc. Manu, the law giver of this age emphasized the necessity of

torture to protect the society from the hands of the criminals. The Buddhist period ( B.C. 300-

300 A.D.) was an age of great humanitarianism and administration of justice had become

correspondingly imbued with the humanitarian ideals. Torture in any form was strictly forbidden

and special favors were shown to prisoners, who happened to be women, aged or who had many

dependents. In Gupta Period (A.D. 320-500) if the facts against prisoners were not clearly

established by evidence, recourse was to be held to the four kinds of ordeals, trial by ordeal fairly

common. Under the Mughals, no criminal or civil code existed. Torture toextort confession was

widely spread (Ghosh and Rustomji 1993).

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LEGAL FRAMEWORK: CUSTODIAL VIOLENCE AND

CUSTODIAL DEATH

Indian Constitution and International Conventions

The legal framework in India both constitutional and statutory contains provisions relating to

safeguards arrest, detention, custodial torture and other crimes in custody. The substantive law

(Indian Penal Code, 1861) provides punishment of a person causing injury, torture or death on

the body of a person in custody. The procedural law (Criminal Procedural Code, 1973 and Indian

Evidence Act, 1872) contains several provisions safeguarding the legal rights of a person in

custody. The Constitutional and the relevant statutory provisions on the subject have been

supplemented by the significant judicial pronouncements. In addition, the Protection of Human

Right Act, 1993 provides institutions of the National and State Human Rights Commissions as

well as Human Rights Courts for better protection of human rights of a person in custody. India

has ratified, acceded and singed the International Declarations, Covenants, Conventions and

treaties such as Universal Declaration of Human Rights( UDHR),1 International Covenant on

Civil and Political Rights ( ICCPR),2 International Covenant on Economic, Social and Cultural

Right(ICESCR),3 International Convention on the Elimination of All forms of Racial

Discrimination( ICERD)4, Convention on the Elimination of All Formsof Discrimination against

Women( CEDAW),5 Convention on the Right of the Child(CRC)6, Convention against Torture

and Other Cruel, inhuman or Degrading Treatment and Punishment(CAT),7 and the International

Convention on the protection of the Rights of All persons against Enforced Disappearance

( CPAED)8. This apart, the UN Declaration on Basic Principles of Justice for Victims of Crime

and abuse of Power is relevant.

Constitutional Safeguards For The Accused

The Constitution in its part III deals with Fundamental Rights. The prohibitions imposed by

Article 20, 21 and 22 of the Constitution are directly relevant to the criminal process. Article 20

(1) prohibits retrospective operation of penal legislation. Article 20(2) guards against double

jeopardy for the same offence. Article20 (3) provides that no persons accused of any offence

shall be compelled to be a witness against himself. Of course, constitution article protects against

testimonial compulsion on the premise that such compulsion may act as a subtle from of

coercion on the accused. Article 21 of the Constitution provides that no person shall be deprived

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of life or personal liberty except according to procedure established by law. The expression “Life

and personal liberty”occurring in the Article has been interpreted to include Constitutional

guarantee against torture, assault or injury against a person arrest and custody. The following are

the illustrative decisions, in Dastagir v. State of Madres,2it was held that, punishment which has

an element of torture is unconstitutional.

In case of Inderjeet v. State of Uttar Pradesh, the Apex Court hold the view that prison

restrictions amounting to torture, pressure or infliction and going beyond what the court

authorities, are unconstitutional further it extended that an under-trial or convicted prisoner

cannot be subjected to physical or mental restraint, which is not warranted by the punishment

awarded by the Court, or which amount to human degradation.3. Article 22(1) and 22(2) of the

Constitution are also relevant for the present purpose because one of their objects is to ensure

that certain checks exist in the law to prevent abuse of power of arrest and detention. Article

22(1) provides that no person who is arrested shall be detained in custody without being

informed as soon as may be, of the ground for such arrest ,nor shall he be, of the grounds for

such arrest, nor shall be de denied the right to consult and to be defended by legal practioner of

the choice. Article 22(2) provides that every person who is arrested and detained in custody shall

be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding

the time necessary for the journey form the place of arrest to court of the Magistrate and no such

person shall be detained in custody beyond the said period without the authority of a Magistrate.

Punitive Provisions In Criminal Law And Procedure

Consistent with the constitutional guarantee, the statutory provisions are contained in Indian

Penal Code, 1860, Indian Procedure Code, 1973 and Indian Evidence Act, 1872 for protection of

a person arrested in connection with the commission of an offence as well as prevention of

custodial commission of crimes in police custody. Punitive Provisions are contained in the Indian

Penal Code which seeks to prevent violation of right of life and personal liberty of a person in

custody. The definition in section 44 of the Code which defines the expression “ injury” as

covering harm to body ,mind and reputation or property. Section 220 provides for punishment t

an officer or authority that detains or keeps a person in confinement with the corrupt or a

2AIR ,1960 SC 7593Sheela Barsev. State of Maharashatra. AIR 1983 SC 378

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malicious motive, Section 330 and 331 provide for punishment of those who inflict injury or

grievous hurt on a person to extort confession or information in regard to commission of an

offence Section 330 therefore directly makes the torture punishable under the Indian Penal

Code,1860 its Sections 330 and 331 read : Section 330 says, “: whoever voluntarily causes hurt

for the purpose of extorting from the sufferer, or any person interested in the sufferer, any

confession or any information which may lead to the detection of an offence or misconduct, or

for the purpose of constraining the sufferer ornay person interested in the sufferer to restore or to

cause the restoration of any property or valuable security or to satisfy any claim or demand, or to

give information which may lead to the restoration of any property or valuable security, shall be

punished with imprisonment of either description for a term which may extend to seven years ,

and shall also be liable to fine. According to Section 331,“ whoever voluntarily causes grievous

hurt for the purpose of extorting from the sufferer, or any person interested in the sufferer, any

confession or any information which may lead to the detection of an offence or misconduct, or

for the purpose of constraining the sufferer or nay person interested in the sufferer to restore or to

cause the restoration of any property or valuable security or to satisfy any claim or demand, or to

give information which may lead to the restoration of any property or valuable security, shall be

punished with imprisonment of either description for a term which may extend to ten years , and

shall also be liable to fine.”

Sections 340 to 348 of the Indian Penal Code constitute a group of sections dealing with

wrongful restraint, and wrongful confinement and their aggravations. Of course, they envisage

that the confinement itself is illegal –an ingredient prominently brought out by the adjective

“wrongful”. Whereas section-348 which provides for punishment to a person who wrongfully

confines any person for extorting any confession etc. The section also punishes extortion

committed to extract information leading to the detection of offence or misconduct. The

relevance of the Code of Criminal Procedure, 1973, various contain provisions intended to

operate as a safeguard against custodial offences ranged from arbitrary arrestdetention in custody

to compensation to the victims of custodial abuses. Section 50 of the Code talks about ground of

the arrest and right to bail. This section has been regarded as mandatory, particularly in the light

to constitutional guarantee, so that non-compliance with the section renders the arrest and

detention illegal.4

4(Ashen v. The State, 1987 Cri. LJ1750).

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The arrested person has right to medical examination if he or she a complaint of torture,

maltreatment under section 54 of the Code. Section 56, 57 and 58 related with the action after

arrest is made. Section 56 of the Code provides that a police officer making an arrest without

warrant shall, without unnecessary delay and subject to provisions as to bail, send the person

arrested before Magistrate having jurisdiction in the case or before the officer in charge of a

police station. By section 57, no police officer shall detain in custody a person arrested without

warrant for longer period than under all the circumstances of the case is reasonable and such

period shall not, in the absence of a special order of a Magistrate under section 167, exceed 24

hours exclusive of the time necessary for the journey from a place of arrest to the court of the

Magistrate. Provisions of section 57 are mandatory. Section 58 provides that officers in charge of

police stations shall report to the District Magistrate or Sub Divisional Magistrate about cases of

all persons arrested without warrant, within the limits of the respective stations, whether such

persons have been admitted to bail or otherwise. Where the arrest of a person under the Code of

Criminal Procedure, 1973 is under a warrant, section 70-81 of the Code become applicable,

ofwhich sections 75 and 76 are relevant for the present purpose. Section 75 deals with

notification of substance of warrant and Section 76 provides person arrested to be brought before

Court without delay not exceeding 24 hours exclusive of the time necessary for the journey from

the place of arrest to the nearest Magistrate Court.In case when anyperson dies while in custody

for the police, the law requires a mandatory enquiry by theMagistrate into the cause of death.5

5Section 176 of Code of Criminal Proceedings 1973

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CUSTODIAL JURISPRUDENCE: ROLE OF JUDICIARY

Judiciary through various creative pronouncements evolved custodial jurisprudence in dealing

with custodial crimes in police custody. It includes arbitrary arrest & detention, dehumanizing

methods of Interrogation or torture in custody, compensation to the victims of custodial crimes

and prosecution and punishment for torturer. In a leading case of JoginderKumar v. State of

Uttar Pradesh6, the Supreme Court has examined the power of arrest by police and observed:

“No arrest can be made in a routine manner on a mere allegation of commission of an

offencemade against a person . it should be prudent of a police officer in the interest of

protection of theconstitutional rights of a citizen and perhaps in his own interest that no arrest

should be madewithout a reasonable satisfaction reached after some investigation as to the

genuineness andbonafides of a complaint and a reasonable belief both as to the person’s

complicity and even so asto the need to effect arrest. Denying a person of his liberty is a serious

matter. Therecommendations of the Police Commission merely reflect the constitutional

concomitants of the

Fundamental Rights to personal liberty and freedom. A person is not liable to arrest merely on

thesuspicion of complicity in an offence. There must be some reasonable justification in the

opinion ofthe officer effecting the arrest that such arrest is necessary and justified.

In a matter relating to custodial violence and arrest of female person, the court in case of Sheela

Barse v. State of Maharashatra7 has issued the following relevant directions as under:

• Four or five police lock ups should be selected in the reasonably good localities where only

female suspects should be kept and they should be guarded by female constables.

• Female suspect should not be kept in a lock up in which male suspects are detained.

• Interrogation of female suspects should be carried out only in the presence of female police

officers/ constables.

• Whenever a suspect is arrested by the police and taken to the police lock up, the police will

immediately give intimation of the fact to the nearest legal aid committee.

61994 Cr. L.J. 4SCC 2607AIR 1983 SC 378

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• Surprise visits to the police lock ups in the city should periodically be made with a view to

providing arrested person an opportunity to hear their grievances and ascertain the conditions of

police lock up.

• As soon as a person is arrested, the police must immediately obtain from him/her the name of

any relative or friend who he/she would like to be informed about his/her arrest and the police

should get in touch with such relative or friend and inform him about arrest.

• The Magistrate before whom an arrested person is produced shall enquire from the arrested

person whether he has any complaint of torture or maltreatment in police custody.

The Supreme Court widely elaborated the right against self –incrimination duringinterrogation in

police custody in its various judgments. In case of Nadini Satpati v. P.L. Dhani8 the Court held

that the right against self-incrimination and right to silence of the accused. It is upheld that if

there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but

sufficiently substantial, applied by the police in obtaining information from the accused, it

becomes compelled testimony violative of the right against self-incrimination. The court also

held that compulsion maybe presumed in the case of custodial interrogation by the police “unless

certain safeguards erasing duress are adhered to.” It further observed that the police ought to

permit a lawyer to assist the accused if he can afford one. However, it did not opine that the state

is under an obligation to provide a lawyer to the accused if he is poor. It also acknowledged the

right to silence against self –incrimination. The accused is not bound to answer self –

incriminatory questions. But he does not have right to complete silence. In other words non-

incriminatory questions can be asked and the accused is “bound to answer where there is no clear

tendency to criminative”.The highest court of the country in case of Bhagwan Singh vs. State of

Punjab9 has observed that it may be a legitimate right of any police to interrogate or arrest any

suspect on some credible material but such an arrest must be in accordance with the law and the

interrogation does not mean inflicting injuries. It should be in it true sense purposeful, namely, to

make the investigation effective. Torturing a person and using third degree methods are of

medieval nature and they are barbaric and contrary to law. The police would be accomplishing

behind their closed doors precisely what the demands of our legal order forbid. They must adopt

some scientific methods than resorting to physical torture. The Court further commented “if the

custodians of law themselves indulge in committing crimes then no member of the society is

8A.I.R. 1978 SCC 10759AIR 1992 3 SCC 249

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safer and secure”.Even when formal prosecution is launched by the victim or next of kin, no

direct evidence is available to substantiate the charge of torture resulting in death, as the police

lock-up where generally away from the public gaze. The issue was dealt by Supreme Court in

case of Munshi Singh Gautam& Others v. State of Madhya Pradesh10 the Apex Court

observed;

“Rarely in cases of police torture or custodial death, is direct ocular evidence available of the

complicity of the police personnel, who alone can only explain the circumstances in which a

person in their custody had died. Bound as they are by the ties of brotherhood. It is not known

that police personnel prefer to remain silent and more often than not even prevent the truth to

save their colleagues.”

In the historic judgment in D.K. Basu vs. State of West Bengal11the Supreme Court initiated the

development of “Custodial Jurisprudence” including torture to arrestee infringement of

fundamental rights, citizen entitled to receive compensation from State, quantum of

compensation would depend on peculiar fact of each case and punishment under section 330 of

Penal Code is inadequate to repair the wrong done to citizen. The Supreme Court of India

lamented on the control of police power of arrest and issued guidelines in carry out arrest and

detention by police and law enforcement agencies in the county. They also have the force of law

(Article 141 of the Constitution states that the law declared by the Supreme Court is binding on

all courts in India.). An officer who willfully or inadvertently ignored Supreme Court directives

can be tried in court under relevant provisions of the Indian Penal Code and/ or under the

Contempt of Courts Act, 1971.

10AIR 2005 SCC 63111A.I. R. 1997 SC 610

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CONCLUSION

Custodial deaths are usually of three types: Suicidal, homicidal and natural. As a procedure,

whenever an accused commits suicide in a police station, an inquiry is initiated by the crime

branch unit concerned. The local police station has to send a preliminary report to the National

Human Rights Commission. In most cases, relatives of the deceased allege that the death in

police custody was due to "torture". But police investigations invariably end up issuing a clean

chit to the police officers concerned, by terming it a natural death or suicide. In recent years,

third degree torture and custodial deaths have become an intrinsic part of police investigations

and the injury inflicted on the prisoners is sometimes unbearable. No doubt, the police officers

have contributed towards the maintenance of public order and their plans are also enforced with

purity, activity, vigilance and description. But more often that, the police officers have been

abused and condemned for torturing the public, particularly those who are in custody and

detention, and inflicting injuries to their life and property. In almost every state there is an

increase in frequency of deaths in custody, generally prescribed by the newspapers as lock-up

deaths. Newspapers, almost everyday, carry reports of assault, torture, rape, and death of persons

in police custody. This feature has attained such an alarming proportion that it is affecting the

credibility of the rule of law and order and also the administration of the criminal justice system.

Hence there is an urgent need to examine the issue in depth to develop criminal jurisprudence

and also to make the police officers accountable for their acts and omissions. Despite the fact

that we have detailed provisions to protect and safeguard the human rights of the people, we see

that a steady process of devaluation of human dignity and personality is irresistibly advancing

and brutal betrayal of those basic rights, which are enshrined in international bill of human

rights, becomes a common scenario. The human rights are daily providing to be a mere teaming

illusion and promise of unreality. Custodial violence including torture and death in lock-ups

strike a blow at the rule of law, which demands that the powers of the executive should not only

be derived from law but also that the same should be limited by law.

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REFRENCES

BIBLIOGRAPHY

PILLAI, CHANDRASHEKHARAN K.M, GENERAL PRINCIPLES OF CRIMINAL

LAW, 2nd Edition, Eastern Book Company (2012)

RATANLAL & DHIRAJLAL, LAW OF CRIMES, 25th Edition, Bharat Law House, New

Delhi (2011)

KINGSLEY NAPLEY, SERIOUS FRAUD, INVESTIGATION AND TRIAL, 4th

Edition, Lexis and Nexis (2012)

HUDA SHAMSUL, PRINCIPLES OF LAW OF CRIMES, Eastern Book Company.

WEBLIOGRAPHY

http://bdlaws.minlaw.gov.bd/pdf_part.php?id=75

http://www.isidelhi.org.in/hrnews/HR_THEMATIC_ISSUES/Police/Police-2013.pdf

http://www.rmlnlu.ac.in/webj/custodial_deaths_barkha_Neha.pdf

http://www.ihro.org.in/custodial_deaths.html

http://ncrb.nic.in/CII2010/cii-2010/Chapter%2013.pdf

http://shodhganga.inflibnet.ac.in/bitstream/10603/2714/6/06_abstract.pdf

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