Law of Custodial death and violence in India

Keywords:- Custody-

Arrest

STATISTICS:- A total of 894 deaths in judicial custody and 74 deaths in police custody have been recorded in India in 2017.

In D.K. Basu v. State of West Bengal, (1997) 1 SCC 416 Supreme Court observed:

CUSTODIAL violence, including torture and DEATH in the lock-ups, strikes 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. CUSTODIAL violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law-enforcing officers is a matter of deep concern in a free society.

In spite of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, growing incidence of torture and DEATHs in police custody has been a disturbing factor. Experience shows that worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence or confession often resorts to third-degree methods including torture and adopts techniques of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation. A reading of the morning newspapers almost everyday carrying reports of dehumanising torture, assault, rape and DEATH in custody of police or other governmental agencies is indeed depressing. The increasing incidence of torture and DEATH in custody has assumed such alarming proportions that it is affecting the credibility of the rule of law and the administration of criminal justice system. The community rightly feels perturbed. Society’s cry for justice becomes louder.

CUSTODIAL DEATH is perhaps one of the worst crimes in a civilized society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law-breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchism. No civilized nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal cord of human rights’ jurisprudence. The answer, indeed, has to be an emphatic `No’….

(emphasis supplied)

Nature of Evidence: In State of M.P. v. Shyamsunder Trivedi and Ors., (1995) 4 SCC 262 wherein it has been held that in a case of CUSTODIAL DEATH or police torture, generally ocular or other direct evidence is not available and the police officials alone can explain the circumstances in which a person in their custody died.

LAW AGAINST CUSTODIAL TORCHURE 
  1. Indian Penal Code, 1860 (No. 45 of 1860) (Relevant Provisions)
    Section 44, 166, 167, 220, 330, 331, 340 – 348, 349-58, 376(2),376 B to 376 D, 503 and 506
  2. Code of Criminal Procedure, 1973 (No. 2 of 1974) (Relevant Provisions)
    Section 41, 49, 50, 53, 54, 56 – 58, 75 -76, 154, 160, 163, 164,176, 313, 315, 357
  3. Indian Evidence Act, 1872 (No. 1 of 1872) (Relevant Provisions) Section 24 – 27
  4. Protection of Human Rights Act, 1993 (No. 10 of 1994)
    [As amended by the Protection of Human Rights (Amendment) Act, 2006 – No. 43 of 2006]
  5. Constitution of India
    Article 20. Protection in respect of conviction for offences – (1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.
    (2) No person shall be prosecuted and punished for the same offence more than once.
    (3) No person accused of any offence shall be compelled to be a witness against himself.
    Article 21. Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law.

Article 22. Protection against arrest and detention in certain cases.- (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate.
(3) Nothing in clauses (1) and (2) shall apply –
(a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless –
(a) an Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention:
Provided that nothing in this sub – clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub – clause (b) of clause (7); or
(b) such person is detained in accordance with the provisions of any law made by Parliament under sub – clause (a) and (b) of clause (7).

(5) When any person is detained in pursuance of an order made under any law providing for preventivedetention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.
(7) Parliament may by law prescribe –
(a)The circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);
(b) the maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and
(c) the procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).

Murder
Suide
Police custody in Police Station
Discrepancies between the charges as laid by the prosecution and 
medical evidence

Sadashio Mundaji Bhalerao v. State of Maharashtra (2007) 15 SCC 421, which are as follows:

We are conscious that there is a rise in incidents of CUSTODIAL DEATHs but we cannot completely dehorns the evidence and its admissibility according to law convict the accused. We cannot act on presumption merely on a strong suspicion or assumption and presumption. We can only draw presumption which is permissible under the law and we cannot rush to the conclusion just because the deceased has died in the police custody without there being any proper link with the commission of the crime.

SUPREME COURT JUDGMENTS

Bachan Singh Versus State of Punjab
Crl Appeal No 273 of 1979. Decided on May 9, 1980/Aug 16, 1982 (1982 (3) SCC 24 ; AIR 1982 SC 1325)
Bhagwan Singh Versus State of Punjab
Crl Appeal No 388 and 366 of 1981. Decided on May 8, 1992 1992 (3) SCC 249 ; AIR 1992 SC 1689)
Dilip K Basu Versus State of West Bengal & Others
Crl Misc. Petition No 4201 of 1997. Decided on Aug 1,1997 (1997 (6) SCC 642 ; AIR 1997 SC 3017 ; 2003 (11) SCC 723)
Gauri Shankar Sharma Versus State Uttar Pradesh
Crl Appeal Nos. 111and 477 of 1979. Decided on Jan 12,1990 (1990 Supp SCC 656 ; AIR 1990 SC 709)
Khatri (I) Versus State of Bihar
Writ Petition (Cri) 5670 of 1980. Decided on Dec 3, 1980 (1981 (1) SCC 623)
Munshi Singh Gautam Versus State of Madhya Pradesh
Crl Appeal No 919 of 1999. Decided on Nov 16, 2004 (2005 (9) SCC 631 ; AIR 2005 SC 402)
Nilabati Behera Versus State of Orissa
Writ Petition (C) 488 of 1988. Decided on March 24,1993 (1993 (2) SCC 746 ; AIR 1993 SC 1960)
Raghbir Singh Versus State of Haryana
SLP (Cri) No 679 of 1980. Decided on March 31,1980 (1980 (3) SCC 70 ; AIR 1980 SC 1087)
Raj kumari Versus SHO, Noida
Writ Petition (Cri) Nos. 337-338 of 1997. Decided on Sept 19, 2003 (2003 (11) SCC 500 ; AIR 2003 SC 4693)
Shakila Abdula Gafar Khan Versus Vasant Raghunath Dhoble
Crl Appeal No 857 of 1996. Decided on Sept 8, 2003 (2003 (7) SCC 749 ; AIR 2003 SC 4567)
Sheela Barse Versus State of Maharashtra
Writ Petition (Crl) No 1053 -1054 of 1982. Decided on Feb 15,1983 (1983 (2) SCC 96 ; AIR 1983 SC 378)
State of Madhya Pradesh Versus Shyamsunder Trivedi and Others
Crl Appeal No 217 of 1993. Decided on May 9, 1995 (1995 (4) SCC 262 ; 1995 SCC (Cri) 715)