CUSTODIAL DEATH IN INDIA
- Lawschole
- Jul 21, 2020
- 7 min read
AUTHOR- JAGDEEP SINGH, GURU NANAK DEV UNIVERSITY, AMRITSAR.
We live in 21st century still we are unable impede the evil of custodial death or violence , though there’s no precise definition provided for this term under the constitution of india, but it is explained as annihilation of an person or slaughtering that individual while he’s within the custody of the authorities such a scenario is termed as custodial death or violence
. When someone dies within the custody of the authorities such death is alluded as custodial death, it is classified into three broad categories: death in police custody, death in judicial custody, and death in custody of defence/paramilitary forces.
The rate of custodial death in india is extremely high , though there are enormous number of deaths in india ,still no person is convicted , even in 21 century evils like this subsist , not only in india in many other countries this issue still holds a robust position.
Human Rights Watch (HRW) has published a report Citing the National Crime Records Bureau, the HRW report says that between 2010 and 2015, 591 people died in police custody. Police blame most of those incidents as suicide ,mental- illness, or natural causes , any the always deny their involvement in the death of that person
A rights group released to a report by on Friday According to which A total of 1,731 people died in the custody in India during 2019. This means almost five such deaths are daily caused,
26 june is held as The International Day in Support of Victims of Torture ,during this period ‘India released its Annual Report on Torture 2019’ and held that 1,606 of the deaths held in judicial custody and 125 in police custody.
Even though india has the lengthiest constitution that guaranties enormous number rights to its citizens so that they can be protected from the exploitation, but after seeing such reports we can say that even after having such rights , citizens are exploited daily and they are unable to life their life with dignity.
OBLIGATION OF THE AUTHORITIES
The police and the authorities are there for providing their services to the people ,so that there life can be made easy ,the state can be made crime free, but when these authorities starts to misuse their powers and take the law in their hand and torture the innocents some times even causes their death this threatens the security of the nation . when the law keepers are breaking rules what else do we expect from our citizens.
The most recent example of the police authority exceeding its authority is the custodial death of jayaraj and his son benicks in thoothukudi, tamil nadu. They were subjected to brutal violence which ultimately lead to the death of these two , this incident reminded the people that we nd to keep our police in check, and that we must to tolerate such activities .
But this is not the first time when the police has exceeded its power , some times we praise them for doing it and some times we criticize them . we must not forgot the case of disha in which Hyderabad police killed all the accused without giving them the chance of fail trail, people praised them for doing the same, so why they are criticizing it now , just because the people involved in the disha’s case were accuse of raping and murdering the victim it was held justified by the people .
We must not forget that until and unless the crime is proved on the part of accused he is considered as innocent , and even if the allegations are proved still they have some rights and it is not justified to take away their rights as a prisoner .
The police authorities are having the obligation to keep the person safe when they are in the custody and if anything happens to the person in custody then the person whose custody he was in is made answerable and is also held liable .
The Supreme Court held in D.K Basu vs. State of West Bengal[1] and gave certain guidelines which must be followed by the police officers while investigating the case.
·It is the duty of the officials to arrest the person and handle the interrogation in an accurate and fair manner according to the provisions of provided by the Indian penal Code.
·The police officer must also prepare a memo of the arrest and must abide by all the procedures. Also, a individual who is held in the custody of the police has the right to have at least one family member or friend at the time of his/her arrest and it is the duty of an officer to give the place and time of arrest of an accused individual.
·The information must be provided to the member of the family or friend within the 8-12 hours of the arrest.
·A diary should be maintained by the police officers which discloses the date and time of arrest and other important information to the family members and friends
The S.C held that the burden of explaining the custodial death s upon the police rather than the victim. The court will also award compensation on the constitutional basis in public law for the infringement of the fundamental rights .
CONSTITUTUINAL AND LEGAL PROVISIONS
Fundamental right enshrined under article 21[2] ,S.C have interpreted this article beyond its literal sense. Article 21 of the constitution profrer that no person shall be deprived of his /her life and personal liberty except according to the procedure established by law. article 21 is taken as injunction against the torture , though there is no express provision regarding torture or custodial crimes, but article 21 is interpreted in such a way that it also includes the protection against the torture and custodial violence[3].
S.C held in In the case of Sunil Batra v. Delhi Administration (1979)[4] that the inhuman torture and treatment is against the Article 21 of the constitution of India which includes the right to live the life with human dignity. The rights guaranteed under the Article 21 are not merely treated as fundamental right but it is also considered as an human right. so we can say that article 21 includes the protection against the torture and custodial violence .
Protection under code of criminal procedure 1973
The criminal procedure code provides the protection against the custodial crimes .
Section 49- “provides that person who is arrested by the authorites should not face unnecessary restraint than is necessary to prevent his escape[5]”.
Section 57- “No police officer shall detail in custody a person arrested without warrant for a longer period than prescribed by law under all the circumstances , and such period shall not exceed 24 hours, without the special order by the Magistrate under section 167,excluding the time required for the journey from the place of arrest to the Magistrate's Court[6]”.
Section 163- it provides that:
1. “No police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise as is mentioned in section 24 of the Indian Evidence Act, 1872”
2. “But no police officer or other person shall prevent, the perrson from making his own free wil by any caution or otherwise, : Provided that nothing in this sub- section shall affect the provisions of sub- section (4) of section 164[7]”
In the case of R.P Kapur v. State of Punjab[8], (1960) “the court held that the officer who is investigating has certain set of duties regarding the procedure of fair investigation and he must not support the prosecution case with the false investigation and unvarnished truths”.
Protection under Indian penal code 1860
The Indian penal code also provides the protective provisions for the people against custodial violence and crime
Section 166 – “Public servant disobeying law, with intent to cause injury to any person .Whoever, being a public servant, knowingly disobeys any direction of the law ,intending to cause, or knowing it to be likely that he will, by such disobedience it will cause injury to the person, such a person shalll be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both[9]”.
Section 220[10]- “provides punishment to a person with legal authority to confine person , who corruptly or maliciously missuse his power , knowing that what hi is doing is contrary to the law”.
Section 330[11]- “ Voluntarily causing hurt to extort confession, or to compel restoration of property”.
Section 340 to 348[12] “of the ipc deals with the wrongful restraint and wrongful confinement”
Even we have so many laws and provisions actively contributing to curb the evil of custodial violence but still we are witnessing the custodial deaths ,According to NCRB data, between 2001 and 2018, despite 1,727 custodial deaths only 26 policemen were convicted for the offence
SUGGESTIONS
India should take serious steps regarding the issue of custodial violence , to curb the evil of custodial death india still requires a strong set of legislation, India is still not having any anti-torture law and is yet to criminalize custodial violence
Guidelines provided under Law Commission 273rd Report should be followed : The report recommends that those accused of committing custodial torture – be it policemen, military and paramilitary personnel – should be criminally prosecuted instead of facing mere administrative action establishing an effective deterrent
India should Adhere to International Standard : india should now ratify the United Nations Convention against Torture which was signed by india in 1997
Supreme court suggestions in in its landmark judgment DK Basu Case in 2015. Should be strictly followed
References
Anon., 2020 , commonwealth human rights initiative .[online]
Anon., 2020 ,the hindu .[online]
Anon., 2019,Wikipedia .[online]
Anon., 2017 ,SSC.[online]
Anon., 1985,Wikipedia .[online]
[1]AIR 1997(1) SCC 416 [2] Indian Consti. Art .21.(1949) [4] AIR (1978)4 SCC 409 [5]criminal procedure code, S.49.(1973) [6] criminal procedure code, S.57.(1973) [7] criminal procedure code, S.163.(1973) [8] AIR 862, 1960 SCR (3) 311 [9] Indian penal code, S.166.(1860) [10]Indian penal code, S.220.(1860) [11] Indian penal code, S.330.(1860) [12] Indian penal code, S.240-248.(1860)
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