CHAPTER-I

INTRODUCTION
"If you once forfeit the confidence of our fellow citizens you
can never regain their respect and esteem. It is true that you
can fool all the people some of the time, and some of the
people all the time, but you cannot fool all the people all the
time‖.

- Abraham Lincoln

Right to life is one of the most fundamental rights, which has

been recognized by all the political system in the world. All the
political thinkers, whether it is Liberal or Marxist has given
prime importance to the right to life. According to Thomas
Hobbes, ―Institution of State was created only for the purpose
of protection of life as in pre-state period there was complete
anarchy‖.1 According to him main function of the state is to
protect human life.

Right to life is an evolution from the concept of natural rights.

Natural right means those right which every human being have
at all time, without which human existence is not possible, and
these were right to life, liberty and property.2

The doctrine of natural right got its practical shape by way of

Magna Carta (1215 A.D.). The Magna Carta was a petition
urging the King to concede certain right to particular section of

1
Thomas Hobbes : Laviathan
2
Jawahar L. Kaul : Human Right : Issue and Perspective, 1995 P-6

1
the people and,3 King first time recognise some right of the
people through it was limited to some select class only and it‘s
further develop by ‗Bill of Right‘ (1689).

In India during the pre-independence period, a great hardship

was caused to the public, at the hand of foreign ruler. A lot of
atrocities were committed on political prisoners through police
and other agencies. Therefore, after independence our
constitution maker inserted ‗Fundamental Rights‘ in the part-
III of the Constitution. Article 21 guaranteed the ‗Right to life‘
as it contains, ―No person shall be deprived of his life or
personal liberty except according to procedure established by
law‖.

The right to life which is the sole of all other rights including
not only protection against inhuman torture but also right to
live with human dignity and other things which goes along with
it namely bare necessities of life such as adequate nutrition,
clothing and shelter, facilities for reading, writing and
expressing oneself in diverse forms, freely moving, mixing and
mingling with fellow human being.4

The foremost thing that include in right to life is the protection

of human being from the arbitrary arrest, physical torture at
the hand of governmental authorities, which include police and
other custodian of law like prison officials, revenue officials and
custom officials who have been given power under various
statute to keep a person in custody. The police virtually being

3
Dr. Subramanian : Human Rights International Challenges, Vol.1 (2004) Manas Publication, Delhi
(India) P-3
4
Francis Coralie vs. UOI – AIR 1981 Supreme Court 746

2
a visible symbol of the authority of the government is
expected to safeguard the interest of the citizen with respect
to their basic right, but in reality protectors of these rights of
citizens, which was granted under the constitution have
become its major violators. Custodial torture often figures in
the news these days. It is a serious violation of human dignity,
which can destroy the personality of any individual. Torture
ruins the victim both physically and mentally. They remain in a
state of perpetual fear and horror whenever they remember
their custodial agony. Haunted by the trauma they are
probably never able to lead a normal life again.

Custodial violence, perhaps one of the worst crimes in a

civilized society, is a matter of concern for many reasons.
Custodial violence, including torture and death in the lock-ups,
strikes a heavy blow at the rule of law which demands that the
powers of the executive should not only be derived from law
but also that they should be limited by law. It is further
aggravated by the fact that persons, who are supposed to be
protectors of citizens, themselves commit violations of human
rights.

These violations are committed under the shields of

"uniform" and "authority" between the four walls of a police
station, lock-up and prison, where the victims are totally
helpless. The quality of a nation‘s civilization can be largely
measured by the methods it uses in enforcing criminal law.

The Supreme Court has expressed concern over the increasing

number of cases of custodial violence, torture and lock-up

3
deaths in the country posing a serious threat to human rights
of citizens.

The court attributed this to the "devilish devices adopted by

those at the helm of affairs who proclaim from rooftops to be
the defenders of democracy and protectors of peoples' rights
and yet do not hesitate to condescend behind the screen to let
loose their men in uniform to settle personal scores, feigning
ignorance of what happens and pretending to be peace-loving
puritans and saviours of citizens' rights".

The law of arrests is one of balancing individual rights,

liberties and privileges on the one hand and individual duties,
obligations and responsibilities on the other. It weighs and
balances the rights, liberties and privileges of a single
individual and those of individuals collectively and decides
what is wanted and where to put emphasis-the criminal or
society, the law violator or the law abider. Transparency of
action and accountability are two possible safeguards to
prevent any abuse of the power to arrest a citizen. In D.K.
Basu v/s. State of West Bengal5 the Supreme Court laid down
certain requirements to be followed in all cases of arrest or
detention. These must be strictly followed by all agencies.

The precious right guaranteed by Article 21 cannot be

denied to convicts, under-trials, detenus and other prisoners in
custody, except according to the procedure established by law.
Only reasonable restrictions as permitted by law are
acceptable. Using any form of torture for extracting any kind

5
AIR 1997 SC 610

4
of information is neither "right nor just nor fair" and, therefore,
is impermissible as it violates Article 21. Such a crime-suspect
must be interrogated - indeed subjected to sustained and
scientific interrogation - determined in accordance with the
provisions of law. He cannot, however, be tortured or
subjected to third-degree methods or eliminated for eliciting
information, extracting confession or deriving knowledge about
his accomplices and weapons. The police should not take
unfair advantage of the citizens. They must try to inspire
confidence of the people and not instil fear in them. Fear must
be reserved for the wrongdoers, hardcore criminals and
economic offenders but not ordinary citizens. An ideal prison
system must play the same role in criminal justice delivery
system as any hospital plays in the field of health.

In the words of Dr Justice Anand, "custodial death is one

of the worst crimes is in a civilized society, governed by the
rule of law, complaint against such custodial death is hardly
entertained by the police. It becomes very difficult for the
complainant to get evidence against the policeman responsible
for the death of arrestee. Policemen usually manipulate
records to save themselves from further interrogation.
Custody detentions are the mean to maintain public order,
however these places sometime turns into the license for the
violation of human rights.‖

Bestowing of number of fundamental right is not enough

it is essential that these rights should be available to all
subjects equal and in case of their violation there should be a
well-organized legal system to punish the wrongdoer. Police

5
play a vital role in ensuring the enjoyment of legal rights by all
sections of people. It is sorry to mention that sometime right
protector himself becomes the violator, torture, custodial
death, and custodial rape.

According to a National Human Rights Commission

report, there have been 1,462 custodial deaths in India in
2003-04. That‘s up from the 1,305 cases registered during
2001-02. Not too surprisingly, Uttar Pradesh has the highest
number of custodial deaths (217) followed by Maharashtra
(180) and Bihar (148). And these are only the cases that have
been registered. Jammu & Kashmir and Manipur are two of the
five states where there is no custodial death recorded —
extremely surprising for two states that have been in the news
for excesses committed by security personnel.

The National Crime Record Bureau which works under the

Ministry of Home Affairs has also introduced a chapter in its
reports, titled as ‗Crime in India‘ which gives details about the
people who died in police custody or rape committed in police
custody. According to which figures are as under6:

S. Number of Custodial Number of Custodial

No. Year Death Rape
1 2000 31 6
2 2001 49 6
3 2002 40 6

6
Crime in India:Report from year 1995 to 2002, National Crime Record Bureau

6
 4 2003 46 4
5 2004 65 4
6 2005 78 4
7 2006 93 Nil

From the figures given above it is apparent that incident of

custodial violence are on a rise. Police and other custodian of
law use physical assault, denial of food, drink, sleep and toilet
facilities, third degree method, stripping of man and women
and even in some cases forced drinking urinal, rape and death
of the peoples for their ulterior motive which may be either
greed or pressure of work or sheer inefficiency of policemen to
solve the case.

7
 CHAPTER-II
CUSTODIAL VIOLENCE

i) ORIGIN AND GROWTH OF CUSTODIAL VIOLENCE

Custodial violence, which includes torture, death and other

excesses in police custody or prison, is not a new
phenomenon. It has been in the world for ages. The law
enforcement agencies had been practicing this on prisoners,
criminals and the wrongdoers. Even in ancient Indian history,
we find ruler like ‗Nanad‘ Mahapadam in Mauryan era who had
put the entire family of ‗Chandra Gupta Maurya‘ into prisons
and only as much food was provided to entire family which
was sufficient for survival of one person only. Kautilya in
Arthsastra, speaks about various kinds of torture such as
burning of limbs, tearing by wild animals, trampling to death
by elephant and bulls, cutting of limbs and mutilition etc. 7

In the Gupta period (A.D. 320-500 A.D.) trial by ordeal was

common.8 In the post Gupta period, torture of prisoners
became a method of punishment.9

In the Mohammedan period the shariat law was applied to

crimes; a thief hands to be cut off; life for life; tooth for tooth
was the basic principle of Muslim criminal Jurisprudence which
is still followed in Islamic country.

7
S.K Ghosh : Torture and Rape in Police Custody (An Analysis), 1993, p.15
8
Ibid
9
G.P. Sinha : Post Gupta Polity (A.D. 500-750), 1972 p-186

8
The British Raj was also notorious for using violence in police
custody. Men, women and children were caught, beaten and
tortured to make them confess to crimes, which they did not
commit. During this period political workers were picked up for
questioning and if they did not provide the desired reply they
were subjected to torture.10 The naked lying on ice, the denial
of food or insufficient quantity of food, excess physical work
and physical beatings were some of the methods employed
during British Rule to punish law breakers mostly political
prisoners and workers.
One important point which need to be mentioned is that the
perpetrators of atrocities and immoral acts were the servant of
the foreign Government. Their judiciary, police, jails and all
the laws were made for their own benefit and convenience. But
we in independent India following the same model, same penal
code without much amendment. Our police system is same
which was prevalent during British system. It was introduced
by Britishers; in the year 1861 primarily to enable their
administration to have at their disposal a force at a cheap cost
to help them rule the country by suppressing anti
governmental forces and guided by such an objective the
police became the symbol of colonial repression and were for
obvious reason hated by the masses.11 The ― Prison Act‖,
which was passed in 1894, has also remained unchanged. The
Act gives vast power to jail officials to punish prisoners if they
break jail rule. Probably mind set of peoples as well as police
and rulers i.e. executives both political and bureaucracy has

10
Prakash Chandra : “Usually unexpectable face of the Indian Police” : The sentinal (Himachal
Pradesh) 24, April 1992
11
Dishit, Giri Raj and Aggarwal : Police & Community” (1993), p.17

9
remained same only power has been transformed from foreign
ruler to our native ruler.

In modern world, violence especially by those persons in

authority who have power to keep a person in custody is a
great concern, of the society. The incidence of custodial
violence as well as other atrocities affect the law and order
fabric, peace, tranquillity and the life pattern of the
mainstream population, repeated occurrence of heinous crime
against those person who are in custody have, wider impact in
people's mind. The victim of these, violence, are mainly
ordinary men and women belonging to the socio-economy
disadvantage strata of the society. Those who neither have will
nor resources to oppose such inhuman treatment meted out to
them in custody. They have been deprived of their basic
fundamental right i.e. right to life.

The custodial deaths are the matter of grave concern and are
drawing attention of Government, Legislators and the Courts,
in fact to all the sections of the civilized society. A death in
police custody is not only a matter of shame to our social fibre
but it also raises our eyebrows with deep anguish when one‘s
life is taken away by those who are the protectors and
saviours from any violence or onslaught from the criminals.
Order in a society is through obedience of law. If laws are
slaughtered, thrown in the garbage by such forces that are
empowered to bring to bring to book any of its violators, there
cannot be more heinous crime than this. Despite the
worldwide condemnation of this inhuman crime, instances of

10
police atrocities and police excesses have become a thing of
daily occurrence. The weaker sections of our society are most
vulnerable, since they do not have the means to fight for their
rights. In fact, no violation of any other human right has been
the subject of so many declarations and conventions, as the
problem of custodial violence has been.

ii) CUSTODIAL VIOLENCE: MEANING

The term custodial violence has not been defined under any
law. It is a combination of two word custody and violence. The
word ‗custody‘ implies guardianship and protective care. Even
when applied to indicate arrest or imprisonment, it does not
carry any evil symptoms during custody. In maxim, a law
dictionary12 the word ‗custody‘; has been defined as charge'
and with regard to a person in imprisonment: judicial or penal
safekeeping. As Per Chamber Dictionary, the condition of being
held by the police, arrest or imprisonment is called ‗custody‘ 13.
As Per Legal Glossary14 Dictionary, custody is imprisonment,
the detaining of a person by virtue of lawful Power or
authority.

Section 167 of the Code of Criminal Procedure speak about

two type of custody i.e. police custody and judicial custody. As
per section 167(1) of Cr.P.C., ―the magistrate to whom an
accused person is forwarded under this section may whether
he has or not has jurisdiction to try the case, from time to

12
P. Ramanatha Aiyer : The Encyclopedic Law Dictionary with Legal Maxim (1992) : Wadhwa &
Company Nagpur, India
13
Chamber Dictionary: (1983) Allied Publisher p. 330
14
Legal Glossary (1988) Ministry of Law and Justice, Govt. of India

11
time, authorize the detention of the accused in such custody
as he may think fit. Provided that the magistrate may
authorize the detention of the accused person, otherwise than
in the custody of the police, beyond the period of 15 days if he
is satisfied that adequate ground exist for doing so.

So as per section 167 (1) of Cr. Pc. 'police custody' can be

granted for a maximum period of fifteen days only' Police
custody basically means police remand for the purpose of
interrogation. In law actually a police officer has two occasion
to keep a person in its custody firstly, from the period when he
arrest a person till he produce the said person in the court i.e.
first 24 hours of the arrest of accuse. Secondly, when police
gets, remand from court after producing the accuse in the
court which can be extend up to a maximum period fifteen
days, thereafter, a person is sent in judicial custody which in
general terms means jail or prison, where an accuse remain in
custody till he gets bail or if convicted and sentenced to jail till
the completion of sentence. As per law, ‗custody‘ of a person
begins when the police arrest him.

Other type of custody as mentioned earlier is ‗judicial custody‘

which means sending a person in jail or prison. As per 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 a State Government for the detention of prisoners and
include all land and building appurtenant thereto, but does not
include:-

12
 (a) Any place for the confinement of prisoners who are
exclusively in the custody of police; or
(b) Any place specially appointed by State Government
under section 541 of the old Criminal Procedure
Code, 1882,
(c) Any place, which has been declared by the State
Government by general or special order to be
subsidiary jail.

The term ‗violence‘ is the state or quality of being violent,

excessive unrestraint or unjustified force, outrage perforate
injury. ‗Violence‘ in its literal sense has been defined as the
use of force by one person over another so as to cause injury
to him. The injury may be physical, mental or otherwise. The
simple definition of violence is behaviour designed to inflict
injury on a person or damage to property.

Custodial violence is a term, which is used for describing

violence committed against a person by a police authority.
Thus, custodial violence can be defined as ―an inhuman trait
that springs out of a perverse desire to cause suffering when
there is no possibility of any retaliation; a senseless exhibition
of superiority and physical power over the one who is
overpowered.‖ According to Law Commission of India, crime
by a public servant against the arrested or detained person
who is in custody amounts to custodial violence. 15 According to
Dr. S. Subramaniam, ―Any use of force threat psychological

15
S.K. Ghosh : Politics of Violence (1992), Ashish Publishing, Delhi

13
pressure is termed as custodial violence.16 According to Justice
B.P. Jeevan Reddy, ―Custodial violence includes torture, death,
rape and excessive beating in police custody‖.17

Although, overcrowding, malnutrition, unhygienic conditions

and lack of medical care are some of the factors of death in
police and judicial custody, but custodial violence remains the
common cause of deaths in prisons and lock-ups.

The custodial violence is a generic term and includes all and

every type of torture, third degree, harassment, brutality, use
of force not warranted by law, etc. custodial violence include
illegal detention, arrest which is wrongful or on illegal or on
insufficient grounds using third degree method, on the
suspects, humiliating them, using filthy language, not allowing
them to sleep, extorting confession under pressure, padding
up of additional evidence, misuse of the power regarding
handcuffing not allowing to meet counsel or family member to
accuse, denial of food etc. However since the torture or third
degree in the most common and prominent form of custodial
violence by the police.

The police officials commit an act of violence upon the persons

in their custody under the guise of investigation and
interrogation. The heinousness of this crime is that it is
committed upon the citizens by the very person who is
considered to be the guardian of the citizens. It is committed

16
Dr. S. Subramaniam : Human Rights International Challenges (2004), Manas Publications, Delhi
(India)
17
Justice B.P. Jeevan Reddy, a paper presented in seminar : “Custodial Crime, An Affront to Human
Dignity, Human Right Year Book 2001, Universal Law Publication Pvt. Ltd., New Delhi, India.

14
under the shield of uniform and authority within the four walls
of Police Station or lock up, the victim being totally helpless in
these circumstances. The protection of an individual from
torture and abuse of power by police and other law enforcing
officers is a matter of deep concern in a free society.

The chances of violence committed by police on persons in its

custody are much greater than any other form of violence. The
basic reason behind it is that the victims of such violence are
unable to protest against it. The police officers use their official
position to manipulate evidences against themselves. Death in
custody is generally not shown on the records of the lock-up
and every effort is made by the police to dispose of the body
or to make out a case that the arrested person died after he
was released from jail. Any complaint against torture is not
given attention because of ties of brotherhood. No direct
evidence is available to substantiate the charge of torture or
causing hurt resulting into death, as the police lock- up where
generally torture or injury is caused is away from public gaze
and the witnesses are either policemen or co-prisoners who
are highly reluctant to appear as prosecution witness due to
fear of retaliation by the superior officers of the police.

However, in spite of the constitutional and statutory

provisions contained in the Criminal Procedure Code and the
Indian Penal Code aimed at safeguarding personal liberty and
life of a citizen, the growing incidence of torture and deaths in
police custody has been disturbing. Experience shows that the
worst violations of human rights take place during the course
of investigation when the police, with a view to securing

15
evidence or confessions, often resort to third-degree methods
including torture and techniques of arrests by either not
recording them or describing the deprivation of liberty merely
as "prolonged interrogations".

A reading of the morning newspapers carrying reports of

dehumanising torture, assault, rape and death in police
custody or other governmental agencies almost everyday 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 the criminal justice system. As a result the
society rightly feel perturbed. The society‘s cry for justice
becomes louder.

Any form of torture or cruel, inhuman or degrading treatment,

whether it occurs during investigation, interrogation or
otherwise needs the severest condemnation. If the
functionaries of the Government become law-breakers, it is
bound to breed contempt for the law and no civilised nation
can permit that to happen.

Custodial violence may be both physical and or mental. It may

also consist of gross negligence or deliberate inaction. In a
case18, when a person was suffering from high blood pressure
or similar type of disease, almost for which continuous
medicine is essential, and he is not allowed to take medicines
the men develop serious health problem or dies. The Apex
Court held it to be a case of custodial violence and the State

18
Challa Rama Krishna Reddy vs. Stateof Andhra Pradesh – AIR 2000 Supreme Court 2083

16
was made liable for damages for their gross negligence in
protecting the person in custody.

iii) GROWING PROBLEM OF CUSTODIAL VIOLENCE IN INDIA

Despite several initiatives in recent years, torture and ill

treatment continues to be endemic throughout India and
continues to deny human dignity to thousands of individuals.
There is a depressing repetitiveness about statements made
by government officials, members of judiciary, senior police
officials and others in official reports and studies during the
past many years, which have all identified and acknowledged a
serious problem of torture and ill- treatment within the
criminal justice system.

Police has two model roles to play:

a. The prevention of the crime, and
b. Assistance in criminal justice administration.

It is in the later model that Police is rested with the power of

detection and investigation of crime. Inherent in these powers
is the potential for its abuse. In fact, there is no dearth of
instances of Police, excesses. The reports of Amnesty
International gives many instances of police, excess and says
that ―some of those who have died in police, custody appears
to have been innocent of any crime. Often those were detained
in custody illegally with no case or charge registered against
them. Once a prisoner‘s death has occurred, it appears to be
common for the police to implicate the victim in a crime or

17
deny that he had been detained at all.‖ This is a very serious
encroachment on civil liberties and leads to the destruction of
democratic ideals. Hence, immediate remedial action is
required.

Custodial torture has become so common these days that not

only the police and bureaucracy but even people take it for
granted as a routine police practise of interrogation. The result
is that the news of such outrageous conduct causes nothing
more than a momentary shock in the society. When a custodial
death occurs, there is a public uproar, which either dies down
with time or at the most subsided by constituting an enquiring
committee.

The law in all countries authorises the police to use force under
certain circumstances. This authority is in fact, basic to its role
and cannot be questioned. It is a part of policeman‘s legal
mandate. The police have to protect the society from the acts
of murderers, armed robbers, habitual criminals, and terrorists
and make it a safe place to live in. Thus, apprehension of the
gang of dacoits, arrests of accused who violently defies arrests
etc. are the situations which call for a measure of counter-
violence by police. But the police certainly has no right to
inflict brutality on a helpless person under its custody ignoring
the ‗canons of law‘. In a democratic country like India, it‘s the
people and not the police who are the real masters as the
sovereign power is rested with them. The police is simply the
agent of the government which is ultimately accountable to

18
the people. So the police too is accountable to the people for
all its acts.

iv) CONCEPT OF TORTURE

Torture in layman language means ―cruelty‖, ―atrocities‖ and

―hurt‖ and deliberately causing great pain, physical or mental
in order to punish or to get information or to forcibly make one
confess to something.19 Legal glossary defines ‗torture‘ as ―the
infliction of excruciating pain‖.20‗Torture‘ generally supports
intense suffering, physically, mentally and psychologically
aimed at forcing someone to do or say something against his
or her will. It means breaking down under severe pain and
extreme psychological pressure. For obvious reasons, torture
is not torture for those who practise it. It goes under the
names of ‗sustained interrogation, questioning or examining‘,
whatever the name, brutalisation is the result always.

Torture Commission of India also attempted to define ‗torture‘

as ‗pain by which guilt is punished or confession extorted‘.

It means an act of inflicting or excruciating pain especially as

punishment or coercion or any method of inflicting such pain,
which law enforcing authority or any persons or group of
persons inflicts upon a criminal or suspect or arrestee for
extracting true information or for coercion to a person in order
to make confession. When it is an advance degree, it is
sadistic in nature, inhuman, unreasoning, irrational, uncivil

19
Collins Cobuild : English Language Dictionary (1992) P.1546
20
Legal Glossary : Ministry of Law and Justice, Govt. of India,. (1988) p.344

19
and beastlike or beastly, hence brutal. It‘s not merely physical.
There maybe cases of mental torture calculated to create fright
and submission to the demands or commands, when such
threats proceed from a person in authority like police officer,
the mental torture cause by it is even graver21.

The term ‗torture‘ has not been defined in the Constitution of

India or other Penal laws. Torture of a human being by
another human being is essentially an instrument to impose
the will of the ‗strong‘ over the ‗weak‘ by suffering. The word
torture today has become synonymous with the darker side of
human civilization.

It will not be incorrect to state that torture is an integral part

of the police working. It is the best method for the police to
extort confession and to the authorities to silent the voice of
discontent. Therefore both police as well as prison authorities
practice it to fulfill their own objectives.

Torture is inflicted for one of the two purposes

 As a means of eliciting evidence from a witness or from
an accused person.
 As a part of punishment.

The prohibition of torture (and other cruel, inhuman or

degrading treatment or punishment) has been advocated ever
since the adoption of Universal Declaration of Human Rights,
1948 and Geneva Convention, 1949.

21
Arvind Singh Bagga V. „A‟: 1995 Cr R 56 (SC)

20
No violation of any one of the human right has been the
subject of so many conventions and declarations as ‗torture‘ –
all aiming at total banning of it in all forms, but in spite of the
commitments made to eliminate torture, the fact remains that
torture is more widespread now than ever before. ―Custodial
Torture‖ is a naked violation of human dignity and
degradation, which destroys, to a very large extent, the
individual personality. It is a calculated assault on human
dignity and whenever human dignity is wounded, civilisation
takes a step backward – flag of humanity must on each such
occasion fly half – mast.22
In all custodial crimes what is a real concern is not only
infliction of body pain but the mental agony which a person
undergoes within the four walls of police station or lock- up.
Whether it is physical assault or rape in police custody, the
extent of trauma, a person experiences is beyond the purview
of law.

v) CUSTODIAL VIOLENCE: PATTERN, REASONS AND CAUSES

PATTERN

The 20th century saw a radical change in the role and function
of the State and with that, there was a change in the role and
function of the police as well. Police a functionary of criminal
justice system, has to play a crucial role in maintenance of
peace and enforcement of law and order and this is considered

22
D.K. Basu v/s. State of West Bengal, AIR 1997 SC 610 (615)

21
to be its primary duty. Of late, police duties have increased
enormously and are becoming more diversified. The modern
police must, inter alia, protect the public against physical
danger; rescue lives and protects the society.

In the backdrop of a comprehensive, sociological,

technological, economic, political and psychological change,
now underway in India, the values and ethics of police must
also change, so that it does not become an outdated model
because of the rapidity of social change. Despite the new
democratic, secular, socialistic welfare and humanitarian
values vouched for in the Constitution, the Indian Police, by
and large, follows the philosophy of para- militarism associated
with the mechanism of awe, threat and coercion. In other
words, the democratic philosophy of the Constitution hardly
gets reflected in the organisation of Indian Police.

The modern police are primarily concerned with the detection

and investigation of crime and apprehending criminals by
making arrests. It is in furtherance of this duty that the police
at times have to use violent methods and force. As long as the
methods are in course of their prescribed duties and do not
exceed humanitarian limits they can be justified. However, at
times policemen surpass the legal limits of the use of violence
and adopt brutal methods to inflict pain on the arrested person
with a view of extracting confession. The methods are not only
contrary to the laws of the land and international treaties and
conventions but also are in gross violation of human rights.

22
To extract correct and true information they use different
methods like torture, third degree methods, which are
normally, termed as police atrocities in common language.

vi) THIRD DEGREE METHOD

Sometimes police believe more on fists than on wits on torture
more than on culture. The belief ‗all is well with the police, the
critics are always in the wrong.‘ They use various methods of
beating, which in legal language are termed as third degree
methods for extracting information or make them accept their
guilt or confessing for a crime, which they have not done.

Torture on the other hand is an act of inflicting excruciating

pain especially as a means of punishment or coercion, causing
extreme severe pain and anguish so as to get information or
confession by the authority that causes such torture upon the
person so tortured. A torture by police or use of third degree
method by police during the investigation is not protected
under the provision of the Police Acts or Criminal Procedure
Code or the Indian Penal Code or any other law. But normally,
to extract information for further detection of an offence or
crime or restoration of stolen property they do so, by the way
of administering in various forms, may be physical or mental
harm which might increase stage to stage to have the desired
effect.

The methods of torture adopted by government officers

involve gross forms of inhumanity. The United Nations special
Reporter of Torture, after reporting that people are routinely

23
tortured in India, explained that ―methods of torture include:
pulling the victim‘s legs far apart so as to cause great pain and
internal pelvic injury; rotating a heavy wooden or metal roller
over the victim‘s thighs; electric shock applied to victim‘s
genitals, head, ears and legs; prolonged beatings with canes
and leather straps; tying the victim‘s hands behind the back
and suspending him or her from the ceiling by the legs; rape;
threats of rape or molestation; deprivation of food and drink;
keeping the person naked in the cold and in the burning hot
sun in the summer.‖ Such tortures often lead to custodial
deaths, if not death then to other heavy casualties, that are
even worse than death, such as fatal injuries, permanent
disablement, mental derailment, loss of faculties, psychological
trauma, etc.
In Yusuf Ali v/s. State of Maharashtra23, the Supreme Court
said that if the accused is beaten or starved or tortured in any
way during the course of investigation by the police, it will be
taken as a case of custodial violence.

23
AIR 1968 SC 150

24
 CHAPTER-III
PRACTISES FOLLOWED WHILE
ARREST AND INTERROGATION LEAD
TO CUSTODIAL VIOLENCE

A police officer performs the following stages of action against

an accused or suspect:
(a) Arrest of accused is 1st degree.
(b) Transporting accused to some place of confinement is
2nd degree.
(c) Interrogation of accused or suspect in custody is 3 rd
degree; which includes questioning the suspect use of
torture or something similar to, in order to elicit a
confession or to find out all he (suspect or accused)
knows24 which is a clue to guide the police officer or
the Interrogating Officer in the course of the
investigation.

(i) ARREST AND DETENTION

Arrest is a formal mode of taking a person into police custody

or it‘s the taking of a person into custody that he maybe held
to answer for a crime, effected by actual resistant or
submission to custody. S. 46 of Cr PC talks about how the
arrest is made. The section says, ―In making an arrest the
police officer or other person making the same shall actually
touch or confine the body of the person to be arrested, unless
there be a submission to the custody by word or action. If
24
Major Richard 1990, President Association Chief of Police USA: cited in police brutality: an analysis
of police behaviour by Shalender Mishra; 1986 Vikas Publication

25
such person forcibly resists the endeavor to arrest him, or
attempts to evade the arrest, such police officer or other
person may use all means necessary to affect the arrest.
Nothing in this section gives a right to cause death of a person
who is not accused of an offence punishable with death or with
imprisonment for life‖.
Under our legal system, police being State‘s law enforcing
agency have undoubtedly a duty to bring offenders to book
and has legitimate right to arrest a criminal and to interrogate
him during the investigation of an offence, but at the same
time ‗State‘ by its own constitutional provision is bound to
have and give adequate safeguard against the abuses of arrest
by such executives or any law enforcing agency of the State.
Articles 21 and 22 of the Constitution of India are the essence
of the fundamental rights with respect to the personal liberty
of a citizen, which includes an arrestee or an accused. Arrest
by the police is protection of a person from an un- authorised
arrest even on a baseless suspicion, oppression by and abuse
by police, effective enforcement of right to life and liberty and
procedure to be followed while arresting a person are found
under the articles. These rights are inherent in the Articles of
the Constitution and are recognised and protected
scrupulously.
In view of article 22 of constitution of India, whenever a
person is arrested, he shall be informed of the ground of
arrest, shall be produced before a magistrate within 24 hours
of arrest, shall not be denied to consult a legal practitioner of
his choice (see section 56 of Cr. P.C.). At the same time
arresting officer shall make an entry in the diary including time

26
of arrest. Any police officer can arrest a person on a mere
suspicion but such suspicion must be substantiated by prove
for on mere suspicion if arrested without warrant he is liable
for punishment u/s 220 IPC. A police officer can arrest without
warrant if a person is concerned with a cognizable offence, if a
reasonable complaint has been made against, if a credible
information has been received, if reasonable suspicious
exists25. As soon as an arrest is made in respect of citizen,
operation of article 22 of the constitution of India starts
operation and he may take immediate step to regain his
freedom.

But in spite of such safeguards, what happens in actual

practise is really dismal. There are large numbers of people
held in illegal detention whose arrests are not recorded in the
diary despite the fact that Article 21 of the Constitution
prohibits the deprivation of personal liberty otherwise than by
―procedure established by law‖. In such cases, often police
deny the arrest of an individual for several days and then once
they feel they have sufficient evidence, show the entry of an
arrest in the register, as having taken place just prior to
bringing the person before a Magistrate, thus creating records
showing that police have complied with the requirements of
production within 24 hours as required by Section 57 Cr. PC,
read with Article 22 of the Constitution of India. Under such
circumstances of arrest, a relative of such arrested person,
despite of his having knowledge that the arrestee was taken
by Police or by any plain- clothes man of police force or other

25
State V. Maheshwar: AIR 1955 NUC 438

27
law enforcement agency, unable to trace him and sometimes
could not be traced for months together and sometimes found
dead due to police or other enforcement agency using third
degree methods for obtaining requisite information regarding
some related case or confession or to make him agreed with
some planned crime set by them for the reasons known best
to them. Under such situation legal problem for both police
force and State itself becomes very critical; for the person so
arrested was arrested with a view to prevent a crime which
relates for the benefit of the society as a whole.

The detention of individuals in a police station or unofficial

detention centre without recording the fact is a fundamental
abuse which encourages further abuse in the form of torture.
Detainees are effectively disappeared and law enforcement
officials have unfettered power over them. The UN Commission
on Human Rights has repeatedly stated that ―prolonged
incommunicado detention may facilitate the perpetration of
torture and can itself constitute a form of cruel, inhuman or
degrading treatment.‖ In some cases, police admit unofficially
to relatives that a person is undergoing questioning in their
custody and demand money to ensure their safety or release.
There are many cases of illegal detention and torture where
the sole purpose has been extortion of money from the family
of detainee.

Under such circumstances injury caused on the body of the

arrestee has sometimes resulted into his death: - a custodial
death. Such death in custody is generally not shown and not

28
recorded in lock-up register and every effort is made to
dispose the dead body or to make out a case that the arrestee
(arrested person) died after he has been released from
custody or suicide by hanging or by consuming some
poisonous substance indicating that such substance having
acquired through some other sources.

Besides that, there are some provisions of arrest, which are

misused by police. Section 41 of the Cr PC provides police with
the sweeping powers to arrest individuals without warrant in a
number of broadly defined situations including the arrest of a
person ―against whom a reasonable complaint has been made
or credible information has been received, or a reasonable
suspicion exists.‖ This extremely broad provision has in
practise allowed police to arrest individuals when little or no
evidence exists against them. In its submission to the
Supreme Court in Prakash Singh and others v/s. Union of India
and others, the NHRC stated :
‖The powers of arrest now available to police is often misused
to harass and humiliate persons in several situations prompted
by mala fide considerations.‖

Numerous Supreme Court judgements have been made in

relation to arrest and detention procedures in relation to arrest
and detention procedures in an attempt to provide safeguards
for detainees. However, there remains a yawning gap between
the ―law in the books‖ and the ―law in practise‖. Legal cells in
the police departments around the country are supposed to
issue, instructions in line with the new Court judgements.

29
However, the issuing of instructions, if this happens at all,
does not appear to have a practical effect on the operations of
police or security forces. In its most far- reaching judgement
to date on this issue in D.K. Basu v/s. State of West Bengal26,
the Supreme Court issued 11 requirements to be followed as
preventive measures against custodial violence, in all cases of
arrest or detention ―till legal provisions are made in that
behalf‖.

(a) Guidelines to be followed in all cases of arrest and

detention

1. The police personnel carrying out the arrest should bear

the accurate, visible and clear identification and name
tags with their designations. The particulars of all such
police personnel who hand the interrogation must be
recorded in a register.
2. The police must prepare a memo of arrest which shall be
attested by the family member of the arrestee or any
other respectable person from the locality, to which
arrestee belong.
3. Friend, relative or any other person having interest in the
detainee should be informed about the arrest.
4. The time, place of arrest and venue of custody of an
arrestee, should be notified by the police, where the
friend, relative of the arrestee are living outside the
district, to the legal aid organization and the district and

26
1996(8)SCC 581

30
 the police station concerned with 8-12 hours after the
arrest.
5. If arrestee request so, he should be examined at the
time of his arrest and all major or minor injuries present
on his body should be recorded. Inspection memo
should be signed by both the arrestee and police officer
and the copy of that, should be provided to the arrestee.
6. The arrestee should be examined by a trained Doctor
within 24 hours of his arrest, by a trained Doctor or by a
doctor on the panel of approved doctor, approved by
Doctor, health services of the concerned state or the
Union Territory.
7. Copies of the entire document including memo of arrest
should be sent to Magistrate for his record.
8. The arrested person must be made aware of his right to
have someone informed about his arrest or detention.
9. The arrestee may be permitted to meet his lawyer,
during interrogation, though not throughout the
interrogation.
10. A police Central room must be provided at all district
and state headquarters, where information regarding the
arrest and place of custody of the arrestee should be
communicated by the officer causing the arrest within 12
hours of such arrest and it should be displaced on the
notice board of police control room.
11. The arrestee should be subjected to medical examination
by a trained doctor every 48 hours during his detention
in custody by a doctor on the panel of approved doctors
appointed by Director, Health Services of the concerned

31
 State or Union Territory, Director, Health Services should
prepare such a panel for all Tehsils and Districts as well.

ARREST DIFFERENT FROM CUSTODY – arrest is a mode of

formally taking a person into police custody, but a person
maybe in custody in other ways also.

(ii) INVESTIGATION AND INTERROGATION

Experience shows that the worse violation of human right
takes place during the course of investigation, when the
police with a view to secure evidence or confession often
resorted third degree methods including torture and adopts
techniques of screening arrest by either not recording the
arrest or describing the deprivation of liberty as a prolonged
interrogation27. This sort of withholding a person on the
pretext of investigation or prolonged interrogation except
according to procedure established by law would amount to
misuse of power and would come under purview of custodial
violence like torture in spite of constitutional and statutory
provisions aimed at safeguarding personal liberty and life of
a citizen for such person so with-held is also a citizen. It is a
matter of great concern as it is committed by persons who
are expected to be the protector of the citizens and such act
of custodial crime being committed under the shield of
uniform and authorities and moreover within four – wall of
police station or lock-up where the victim is totally helpless,
has made everyone including judicial system a toothless
machinery of the State which exists for the welfare of its

27
D.K. Basu V. State of W. Bengal: 1996 (8) Supreme 581: 1997 (1) RCR (Cri) 373

32
citizens. Hence such a death is an infraction or invasion of
individual right guaranteed under Article 21 of the
constitution of India where death is caused during the
custodial period or in the hands of those who are supposed
to protect life and liberty of a citizen.
A confession-oriented approach to investigations coupled
with public pressure on police to fight crime using any
means necessary ensures that the use of torture to coerce
confessions is commonplace. Although Section 25 of the
Indian Evidence Act makes it clear that confessions made to
Police officers cannot be used in evidence against accused,
Section 27 of the Act (confessions leading to finding of
corroborating evidence) means that confessions are still of
use to Police. If a crime is ‗solved‘ on the basis of illegal
extraction of evidence, that evidence is still admissible.
Section 164 of the Cr PC states that Magistrates are
required to ensure that a confession is made voluntarily and
Sections 330 and 331 of the IPC provide for punishment for
‗voluntary causing hurt‘ or ‗grievous hurt‘ to ―extort
confession or to compel restoration of property‖ but these
provisions are rarely used against the police officers.
Report of Padmanabhian Committee stated, ―Formal
training in the skills of interrogation is hardly imparted to
policemen, apart from a few odd lectures during training. As
a result, a policeman learns the skills on the job, largely by
improvisation and by watching his senior, peers successfully
extracting confessions by the rough and ready method of
torture. Since they have no real experience of scientific and
painstaking interrogation and since time is anyhow at a

33
 premium with the police, they tend to gloss over the merits
of sustained interrogation in favour of the quick results that
torture brings.‖

An important safeguard against violation of rights during

interrogation is the presence of legal counsel. Principle of
the basic principles on the role of lawyers establishes the
right to assistance at all stages of the criminal proceedings
including interrogations. The right of detainees to legal
counsel has been granted under Article 21 of the
Constitution also. The Supreme Court in Nandini Satpathy
v/s. P.L. Dani28 has interpreted that right to mean that
detainees a right to consult a lawyer of choice and that the
right includes the right to the presence of a lawyer during
interrogation. This can be used as means of ending torture
while interrogation.

In case of Public Prosecutor v/s. Shaik Ibrahim29, the police

tortured the suspects with a view to extorting information
during the investigation, which lead to death of the suspect;
the Court said that torturing suspect with a view to
extorting information from them is a crude, barbarous and
reprehensible method of investigating and detecting crime
and though it is without intention or knowledge of causing
death, but in doing so police officials had voluntarily caused
hurt to the suspect, conviction u/S 330 IPC justified.

28
AIR 1978 SC 1025
29
AIR 1964 AP 548

34
 In State of UP v/s. Rafiuddin Khan30, the deceased was
undisputedly arrested from his residence and beaten while
in police custody and received as many as 28 injuries
according to medical reports and his death was attributed to
shock and haemorrhage. His arrest from his residence on
19/10/1971 was not recorded instead shown to have been
arrested on 20/10/1971. Three policemen, involved were
held guilty of causing custodial death.

In Directorate of Enforcement Vs.Deepak Mahajan &

anr.31 , The court explained that, ―The code gives power of
arrest not only to a police officer and a Magistrate but also
under certain circumstances for given situations to private
persons. Further, when as accused persons appears
before a Magistrate or surrenders voluntarily, the
Magistrate is empowered to take that accused person into
custody and deal with him according to law. Needless to
emphasize that the arrest of a person is a condition
precedent for taking him into judicial custody thereof. To
put it differently, the taking of the persons into judicial
custody is followed after the arrest of the person
concerned by the Magistrate on appearance or ‗surrender‘.
In every arrest, there is custody but not vice versa and
that both the words ‗custody‘ and ‗arrest‘ are not
synonymous terms. Though ‗custody‘ may amount to an
arrest in certain circumstances but not under all
circumstances. If these two terms are interpreted as

30
AIR 1990 SC 709
31
1994 Cr.L.J. 2269

35
synonymous, it is nothing but an ultra legalist
interpretation, which if under all circumstances accepted
and adopted, would lead to a starling anomaly resulting in
serious consequences.

A Magistrate can himself arrest or order any person to

arrest any offender if that offender has committed an
offence in his presence and within his local jurisdiction or
on his appearance or surrender or is produced before him
and take that person (offender) into his custody subject to
the bail provisions. If a case is registered against an
offender arrested by the Magistrate and a follow up
investigation is initiated, or if an investigation has
emanated quo the accusations leveled against the person
appearing or surrendering or being brought before the
Magistrate, the Magistrate can in exercise of the powers
conferred on him by Section 167(2) keep the offender or
person under judicial custody in case the Magistrate is not
inclined to admit that offender or person to bail.

To invoke S.167(1), it is not an indispensable pre-requisite

condition that in all circumstances, the arrest should have
been effected only by a police officer and none else and
that there must necessarily be records of entries of a case
diary. Therefore, it necessarily follows that a mere
production of an arrestee before a competent Magistrate
by an authorized officer or an officer an officer empowered
is arrest (notwithstanding the fact that he is not a Police
officer in its stricto sensu) on as he reasonable belief that

36
the arrestee has been guilty of an offence punishable‖
under the provisions of the special Act is sufficient for the
Magistrate to take that person into the custody on his
being satisfied of the three preliminary conditions, namely,
(1) the arresting officer is legally competent to make the
arrest; (2) that the particulars of the grounds for such
arrest exist and are well-founded; and (3) that the
provisions of the special Act regard to the arrest of the
persons and the production of the arrestee serve the
purpose of S. 167 (1) of the Code.

It cannot be said that either the Officer of Enforcement or

the Customs Officers is not empowered with the power of
investigation though not with the power of filling a final
report as in the case of a Police Officer.

The word ‗investigation‘ cannot be limited only to police

investigation but on the other hand, the said word is with
wider connotation and flexible so as to include the
investigation carried on by any agency whether he be a
police officer or a person not being a police officer under
the direction of a Magistrate to make investigation vested
with the power of investigation.

The expression ‗investigation‘ has been defined in S.2(h).

It is an inclusive definition. It being an inclusive definition
the ordinary connection of the expression ‗investigation‘
cannot be overlooked. An ―investigation‖ means search
for material and facts in order to find out whether or not

37
 an offence has been committed/ it does not matter
whether it made by the police officer or a customs officer
who intends to lodge a complaint.

The word ―investigation‘ though is not shown in any one of

the sections of the Customs Act, certain powers enjoyed
by the police officer during the investigation are vested on
the specified officer of customs. However, in the FERA the
word ‗investigation‘ is used in various provisions namely,
Section 34, 37, 38 and 40 reading…..‖ any investigation
or proceeding under this Act…‖ though limited in its
scope.‖

Custodial Death

‗Custodial Death‘ i.e. deaths under police custody or jail.

Article 21 of the constitution of India provides that no person

shall be deprived of his life or personal liberty except according
to procedure established by law. Right to life is a fundamental
right. Right to life does not mean just bare existence it means
life full of dignity necessary for human existence in a society,
personal liberty is taken care of by Article 22 which provides
that the arrested person should be informed about the grounds
of his arrest and should be produced within 24 hours of his
arrest before magistrate.

―Liberty is the most cherished possession of man.‖ 32

32
Kharak Singh V. State of U.P.: AIR 1963 SC 1295: 1963 (2) Cri L J

38
The protection of life and liberty and protection from or against
arrest of a citizen are contained in our constitution. The
protection of life and liberty of a citizen includes the person so
arrested, as the person so arrested is also a citizen of India
and he is protected by Article 21 of the Indian constitution
and, as much if at all his life and liberty is to be curtailed, it
must be according to Article 21 of the Indian constitution
which says that ‗no person shall be deprived of his life or
personal liberty except according to procedure established by
law‘. The expression personal liberty is not limited to bodily
restraint or to confinement to prison only as has been
illustrated by Hon‘ble Supreme Court in Kharak Singh V. State
of U.P.

Dicey said, ―Right to personal liberty as understood in

England means a person‘s right not to be subjected to
imprisonment, arrest, or other physical coercion in any manner
that does not admit of judicial justification, thus whenever a
policeman visit at night to a private house or of a suspect in
order to make sure whether the suspect is in the house or he
has gone out would mean an intrusion into the personal liberty
and security and his right to sleep, therefore, violation of
personal liberty of the individual, unless such a domiciliary
visits is in accordance with the procedure of the law or
authorized by a valid law.‖ 33

The custodial deaths are the matter of concern and are

drawing attention of Governments, Legislatures and the

33
Kharak Singh V. state of U.P.: AIR 1963 SC 1295: 1963 (2) Cri L J

39
Courts, in fact to all the sections of the civilized society. A
death in the police custody is not only a matter of shame to
our social fiber but the raises are eyebrows with a deep
anguish when one‘s life is taken away by those who are the
protectors and saviours from any violence or onslaught from
the criminals.

Though the subject matter of this topic is of less

spherical for the sake of educational studies but it penetrated
and pierced into my heart as the theme involves human right
and infringement of article 21 of the constitution of India when
such incidents take place in the hands of our protectors whose
duty is to protect the citizens of the country for which they had
been implied by the State.

While working on project I came across certain appalled

incidents which make us horrified and one could never dream
of it that our protectors could commit such a glorious crime of
the gouging eyes (AIR 1982 SC 1008)34 which shocked the
whole universe. Due to such stray incidents public have lost
their faith in general to the extent that going with uniform a
police officer friend is mistaken by the public that one is
arrested. Government must do something that could infuse
confidence in the public.

Order in a society is through obedience of law. If laws are

slaughtered, thrown in the garbage by such forces that are
empowered to bring to look any of its violators, death cannot

34
Anil Yadav V. State of Bihar & Another

40
be more heinous crime than this. Tentacles of law have to be
spread to deal with such cases very sternly. The catena of
decisions by the Courts in India clearly reveals its concern. No
one has a right to take away one‘s life under the garb of any
authority howsoever high except in accordance with law.
Death penalty in a murder case is the only sanctioned
authority to the Courts that too only in rarest of rare cases.

PROBLEM IN BRINGING THE CASES OF CUSTODIAL VIOLENCE

TO BOOK

By nature of complaint against such custodial death or torture

is hardly attended by Police and generally no attention is paid
because such complaints lie against the same class of people
of the same uniform, what the Supreme Court called as ―Ties
of Brotherhood‖. No FIR at the instance of the victim or his
kith and kin is generally entertained and higher police officer
hardly listen to such allegation and information for such act or
information is a black spot on Police uniform besides higher
official thinks it a mala fide allegation against the policeman
responsible for resorting the third degree method or policeman
on whose interrogation the victim died, since the crime by
uniform men are committed inside the Police Station records
which is not difficult for them to manipulate.
Also, the detainees are regularly threatened by Police not to
make complaints of torture and brought before Magistrates by
those same police officers that have been responsible for their
interrogation and torture. Therefore, if not specifically asked
by a Magistrate as required by Section 54 of Cr PC and placed

41
in a safe, environment where they do not fear reprisal,
detainees will not make such a complaint.

42
 CHAPTER-IV
CAUSES OF CUSTODIAL VIOLENCE

In spite of the fact that every segment of the society feels

concerned about custodial violence, over the years it has
remained unabated. It seems to be on rise every year, in spite
of the fact that rate of literacy has increased and the people
have become aware about their rights and duties. The main
arm of the criminal justice system that deals with people in
custody is police. It will, therefore, be necessary to find out
ailments, which govern this agency resulting into abuse of
those who are in their custody. In this section, an attempt is
made to find out as to what lies at the root of the problem of
custodial violence. For this it is essential to study the
conditions under which police works and to find out their mode
of operation in dealing with the accused persons.

The basic causes for violence can be grouped in the following

categories: -

(i) Task Pressure

The police in India has to perform a difficult and delicate

task in view of the deteriorating law and order situation,
riots, political turmoil, student unrest, terrorist activities,
increasing incidence of bribery, corruption, tax evasion ,
violation of fiscal laws, smuggling and money-laundering.
Organised criminal gangs are gaining strong roots in the
society. They use ultra-modern weaponry, explosives and

43
 many other devices of committing crimes without leaving
any evidence of their crime many a time. Similarly, dealing
with insurgent and terrorist groups is also completely
different from dealing with ordinary criminals. This category
of criminals is well-trained, hardened and equipped with
ultra-modem weapons. An ordinary policeman carrying a
small revolver or even a gun ordinarily provided to him is
invariably no match to them. Indeed, a resourceful criminal
can escape the clutches of law almost indefinitely. The
Indian police today finds itself handicapped not in its
numerical strength but its inadequate infrastructural
facilities like modern weaponry and equipment, transport
and communication network and, more importantly, need-
based training which is of paramount importance to make it
more efficient and effective instrument of law enforcement.

A very important reason for continuing brutal behaviour by the

Police is pressure. The sources of pressure are several, but
basically they relate to performance or output beyond the
narrow confines of police role, in spite of constraints on
adequate role performance. Policemen have to deal with crime
and disorder not on bits of paper but in the raw, directly. This
generates lot of pressure, both from the people and the
government.
In addition to the constraints of the system are the constraints
arising out of its actual operation. The outcome of Police effort
as they lead to deterioration of evidence and thereby reduces
the chances of conviction in a Court of law. Medical and legal
reports are often received very late. TIP‘s(Test Identification
Parade) are often delayed considerably, before which the

44
accused are bailed out, thus defeating the purpose of holding
such a parade. In our accusatorial system, a person is
presumed innocent unless his guilt is proved beyond
reasonable doubts and thus, the degree of proof, which is
required on part of prosecution, to secure conviction is
exceedingly high. Thus, in a trial the chances of conviction are
roughly one out of four. But results have to be achieved as
quickly as possible or else the officer is transferred. So a
shortcut is required to achieve result and for them, the UP
Police Commission 1970-71 observed :-

―An accused or suspect may be kept under Police custody for a

maximum period of 24 hours as per law. In the meanwhile, a
great deal of information remains to be elicited from the
suspect especially in offences involving property, on recovery
of which the success of prosecution greatly depends.
Whenever the investigating officer finds it practicable, he
records arrest after quite a few days of unrecorded and illegal
detention. Thus the pressure of securing maximum information
in the available time implies the investigating officer to use
shortcut methods.‖

(ii) Lust for Money

This is the most hateful reason for custodial torture and one
that seems to be on the increase. At the level of Police
Station, a number of Policeman use brutality to extract
money from suspects and innocent persons. The legal
situation and the nature of evidence facilitate the process of

45
making SHO very powerful and giving what he does, an air
of finality, which gives him the unintended power to extract
money and escape the corrective process of supervision.
The courts give enormous importance to the FIR and what
kind of FIR is actually written depends on the policeman on
duty. Investigating a dacoity case, he can always threaten
to implicate an honest man, even beat him up or simply
keep him hanging about the police station until he gives him
money. Supervision takes place after the fact and while an
attempt can be made to punish the policeman concerned, it
can seldom undo the wrong done, recover the evidence that
has deteriorated.

(iii) Punitive Violence

There are few honest but misguided policeman who believe
in not letting the criminal get away with it. It is genuinely
believed by them that except for a sound beating, there is
no other way of controlling criminals. U. P. Police
Commission 1970- 71, stated:

"The reason for use of third degree method is born out of

wrong convictions. There is cross-section of the people and
the police and a sizeable one at that, which believes in the
efficacy of third degree methods alone in dealing with
criminals, particularly hardened ones. They say that a jail
term is no more a deterrent to the criminals. They remain
happy there, particularly as conditions inside the jails have
begun to score over conditions outside and the only thing
they are scared is a beating by the police. It is not unusual

46
to find rotaries against third degree methods pleading for
use of 'police methods' for working out a case in which they
happen to be interested." The whole tenor of the criminal
justice system is punitive, hence a subsystem of it expected
to be of service to the people cannot so operate. On
account of the constraints of the system, the nature of the
police function also becomes punitive, and many policemen
see their brutality as extension of the punitive role of the
organisation.

(iv) Positive re- enforcement

No matter what the constraints are, results have to be

produced. As things are, a policeman, say a sub Inspector,
who is brutal, who operates only on short cuts and is
unscrupulous about the means he uses, produces results.
The production of result ease the pressure on his superiors,
even wins the acclaim of all and sundry, with the result that
all his sins are and have to be forgiven. In due course and
sometimes earlier, such a policeman rises in his hierarchy.
This reinforces his use of third degree methods not only in
his own eyes but also in the perceptions of his peer group
and his subordinates. Sometimes the expertise at third
degree of some policeman receives such wide appreciation
that other policeman confronted by an intractable situation
or a case, requests for his assistance. He then goes like a
superior performer 'tackles' the suspect and produces
results, gathering a reward in the bargain. This constant
positive reinforcement of third degree method when it

47
produces results is a very important cause of violence by
Police in custody. Thus, positive reinforcement of Police
violence takes place because it produces results and
produces them fast, at least quicker than otherwise.

(v) Police Sub- culture

The police sub-culture is the sociological side of the same

coin. What it amounts to is the belief that a policeman
reacts to a situation in a manner peculiar to him as a
policeman and thus different and identifiable from how
other people would react to the same situation. The sub-
culture of our police includes use of third degree methods.
The police sub -culture is strengthened by alienation,
cynicism, law-esteem in society, a degree of pariah feeling,
conflicting demands made of policeman, inconsistent
judgment of their work, all forcing them into a corner. In
this situation a policeman finds succour among others of his
community with whom he identifies, leading to group
solidarity, which in turn provides a sense of security against
the hazards of his occupation, and a basis for a medium of
self-esteem and some social affiliation in spite of the
irregular hours of his work. Thus develops the culture of
group that which demands greater conformance to threats,
tortures, rather than rules, regulations, orders etc.

However can one explain the fact that a young man of good
family, trained in a reasonably good manner, starts
behaving, within a few years only and particularly if he is in

48
an operational rank such as that of sub inspector, in a
brutal manner, true to the stereotype of his profession in
general and rank in particular.

(vi) Lack of Proper Training

Lack of proper training to the Policeman often result in use

of third degree methods. The utterly inadequate training
given to constables, the general absence of any attention to
the necessity for keeping temper, being civil and respectful
to the public, avoiding brutality or unnecessary harshness,
are the factors that which leads to violence. Gore
committee on Police Training 1972, was of is the view that
one of the objectives of training should be to inculcate the
right attitude towards the public which consists is never
forgetting that the civil servant is the servant and not the
master of the community. However, unfortunately, till date
no adequate training with the objective mentioned, has yet
been provided to police. Police should be given proper
training which should include a separate course to impart
them knowledge about the human rights and that they are
here to protect the human rights and not to infringe them.

(vii) Some other factors

Apart from the reasons mentioned above, the other reasons

for custodial torture can be sexual weakness, sadism etc. A
male police personnel may have a tendency of attraction

49
towards opposite sex prisoner. For satisfaction of this lust
he may use force and commit rape in the custody or he may
use his official position to obtain consent for sexual
intercourse. An amendment has been made in the IPC,
1861 to provide for stringent punishment for those officers,
who use their official position to obtain consent of female
prisoner in the custody for having sexual intercourse with
them.

The third degree methods are also applied for 'teaching a

lesson' or 'vomiting out anger'. It is the stage, where
professional competence of the individual policeman
surrenders before a situation and then he almost goes out
of his mind. This can be averted if the policeman could
keep their cool, not be overcome or torn by emotions,
maintain a philosophical detachment and as a parallel
requirement, have sufficient professional skill.

Another reason of custodial violence can be the social

factor. In our country, we are accustomed to think in terms
of 'an eye for an eye' and 'tooth for tooth'. Therefore, the
Society tacitly expects and approves the use of violence on
suspects to get the truth. Complainants themselves urge
the police to use force or violence to break a suspect.
Therefore, in a Society, where the public are indifferent to
the use of force on fellow human beings, policemen gets, as
it were, social support for these illegal acts.

a) The third degree is a short act to quick results. As

per the report of National Police Commission, an

50
 investigating officer is able to devote only 37% of
his time in investigation while the rest of his time is
consumed in law and order duty, VIP and security
duty, court attendance and other miscellaneous
duties. The result is naturally short cut and extra
legal.
b) Lack of knowledge of application and experience of
scientific methods in crime investigation and
interrogation of accused. Inadequate training etc.
c) Sometimes society expects police to take tough
action not sanctioned by law against criminals. Use
of third degree is their service right and accepted
part of profession.
d) Political and beaureaucratic influence and
interference, collusion with rich and influential
people and dancing to their tune.
e) They feel immune to the fact that whatever they
will do won‘t be questioned.
f) Disproportionate ratio between crime rate and
manpower.
g) Lack of effective supervision and inspection of
Police Station by superior officers.
h) Delay in trial gives more time to interrogate.
i) Erring police officials go unpunished due to lack of
evidence.
j) Psychological aberrations of the custodian – sadism,
sexual weakness, social hatred, etc.
k) Lack of time for investigation.

51
 l) Inability to keep a person for longer duration in
custody for interrogation than 24 hours are such
factors which induce police to keep suspect in
‗unofficial custody‘ which ultimately encourage the
police to indulge in custodial violence.
m) Long duration of work and deplorable
conditions of work. A study carried out by National
Productivity Council had shown that a policeman
has to work sixteen hours a day and seven days a
week.35

35
Shankar Sen : „Indian Police Today‟ (1994) p.40

52
 CHAPTER-V
Legislations facilitating Custodial
Violence

There is a body of Indian law, which is responsible to an

extent for facilitating torture or ill treatment. In particular, the
powers to preventively detain people provided for in the Indian
Constitution involve the suspension of important legal and
constitutional safeguards and thereby facilitate torture and
cruel, inhuman and degrading treatment of detainees. Clause
3 (b) of article 22 of the Indian Constitution excludes those
detained under preventive detention legislation from the right
to be informed of the grounds of arrest "as soon as maybe",
the right to consult and be defended by a legal practitioner of
their choice and to be produced before a magistrate within 24
hours guaranteed under article 22. The U. N. special reporter
on torture has noted, "torture is most frequently practised
during incommunicado detention (detention without access to
the outside world). Incommunicado detention should be made
illegal and persons held in incommunicado detention should be
released without delay. Legal provisions should ensure that
detainees be given access to legal counsel within 24 hours of
detention."

Preventive detention Legislation includes the National Security

Act 1980 (which is in force throughout the country) and
numerous state legislation including the Jammu and Kashmir
Public Safety Act, 1985 & the Tamil Nadu "Goondas" Act,
1982. In its report punitive use of preventive detention

53
legislation in Jammu and Kashmir, which outlined concerns
about the P. S. A., Amnesty International reported that it had
been informed of severe torture and ill treatment of some
detainees held under the Act .

The Terrorist and Disruptive Activities (Prevention) Act, 1987

(TADA), which lapsed in 1995, was found to have led to
widespread use of torture by law enforcement officials. As well
as withdrawing safeguards under article 22 of the Constitution
for those suspected of broadly defined offences of "disruptive
activities" and "Terrorist Act" it further safeguards and there
by facilitated the use of torture. Under Sections 25 and 26 of
Indian Evidence Act, is made to police officer are not
admissible as evidence. These provisions acknowledge the
danger in relying upon such "confessions" in view of the
continuing suspicion that they will be obtained by the Police
resorting to illegal practices including torture. Evidence of the
continued use of torture to extract confession, despite this
apparent safeguard reinforces the need for its continuing
existence and rigorous application. However, Section 15 (1) of
TADA suspended this safeguard and made confessions to a
police officer of the rank of Superintendent of Police and above
admissible in evidence.

Section 32 of the Prevention of Terrorism Act (POTA), 2000 is

similar to Section 15 of TADA. Before passing of this Act,
NHRC expressed its opinion, that, "this would increase the
possibility of coercion and torture in securing confessions and
thus be inconsistent with Article 14 (3) of the International

54
Covenant of Civil and Political rights." Its concerns appear to
have been realised in practice. In Gujarat there have been
several allegations made by detainees in Court that
confessions have been extracted forcibly from them.

As well as directly facilitating torture by suspending safeguards

for detainees, legislation exists in India which facilitates
immunity for perpetrators of torture and therefore leads to
further acts of torture by officials who believe that they are
immune from prosecution.

Sections 45 and 197 of the CrPC provide protection from

prosecution to members of the Armed Forces and public
servants for anything done or purported to be done by them in
discharge of their official duties except after obtaining the
consent of the Government. The immunity provided in
Sections of the CrPC is reflected in state legislation governing
Police actions, often in the guise of limitation of time for
bringing action. For example, Section 53 of the Tamil Nadu
Police Act 1869, which says that all actions brought for
anything done under provisions of the Act shall be commenced
within three months of the commission of act. The
requirement for sanction in several laws has been employed in
many cases in which allegations of torture in custody have
been brought despite strong protests, which argue that torture
can never be to be part of 'official duty'. Acts of torture or ill
treatment should never be considered to be a part of the
'official duty' of the law enforcement officials and therefore the
requirement of prior-sanctions of the government for

55
prosecution of public officials in such cases should never be
invoked. Barriers to prosecution facilitate impunity and ending
impunity is a vital step in preventing torture.

All the statutes and laws form a network that will necessarily
lead to misuse by the Police Officers. They create an
atmosphere that cannot be controlled. In my submission, all
these laws and provisions should be reviewed with the aim of
preventing rather than facilitating torture and ill treatment.

56
 CHAPTER-VI
Dimensions of custodial violence

(i) Personal Security V. Social Security

The incident of custodial death and its increase in

numbers has thrown up larger question on the violation of rule
of law and abuses of powers by the police or custodian of law
during the conduct of investigation. Police as a law-enforcing
agent for the up-keep of welfare of society has to perform
their duty and it is their duty to find the culprit and arrest and
put through the trial according to the law of the country for the
punishment of the culprit. It is their duty to safeguard the
society and its individual. In order to bring to book the culprit
in a proper forum investigation of the matter before taking to
such forum is essential. Under such circumstance in order to
extract correct information from relatives and near and dear
about the suspected person, sometimes these near and dears
are picked-up for questioning and cases are not known where
persons are arrested by the police but no entry of arrest has
been made in the register and it is only when the police
decides to produce the person arrested and picked up before
the Magistrate they make an entry of arrest in the register,
creating records showing that they have complied with
requirement of production within 24hours according to the law.
Under such situation question of personal liberty and social
security or security of society has to be balanced. Such
picking-up for questioning, though it is not an arrest, affect the
liberty of a citizen for the liberty of an individual is a matter of

57
great constitutional importance in our system of governance 36,
for all powers belongs to the people, and it is entrusted by
them to specified institutions and functionaries with the
intention of working out, maintaining and operating a
constitutional order.

To any civilized society, there can be no attributes more

important than the life and personal liberty of its member and
this is evident from the paramount position given by Courts to
Article 21 of the constitutional37, hence infringement and
deprivation of personal liberty and threat of the deprivation of
life by the action of State is in most civilized societies regarded
serious recourse by state enforcement agency, for ‗the liberty
of the citizen is a priceless freedom sedulously secured by the
Constitution‘, even so during the time of emergency in
compliance with statutory formalities which are the vigilant
concerned of the Courts of enforce38.Their Lordship in State of
Bihar V. Kameshwar Prasad39 states that ‗no member of the
executive can interfere with the liberty of a subject except on
the condition that he can support the legality of his action
before a court of justice and it is the tradition of British justice
that judges should not shirk from deciding such issues in the
face of the executive. It is the same jurisprudence, which has
been adopted in this country on the basis of which the courts
of this country exercise jurisdiction. Though our constitution is
very jealous of the concept of personal liberty.

36
Rameshwarlal V. State of Bihar: AIR 1968 SC 1303
37
Kehar Singh V. UOI: AIR 1989 SC 653
38
Sher Mohammad V. State of W. Bengal: AIR 1974 SC 806
39
AIR 1965 SC 575

58
 The personal liberty of an individual as enunciated by the
Hon‘ble Supreme Court of India in Mohamad Karim @ Mohd.
Subrati V. State of W. Bengal is jealously protected by our
constitution, but this liberty is not absolute and is not to be
understood to amount to licence to indulge in activities, which
wrongfully and unjustly deprive the community or the society
of essential services and supplies. The right of the society as a
whole is from its very nature, of much greater importance than
that of an individual40.

It is an error to suppose that liberty consists in a paucity

of laws. Justice Mathew in his majority of judgement in Prabhu
Dayal Deorath etc. V. The District Magistrate of Kamarup and
other41, it gave emphasis to the protection of life and personal
liberty as stated in the Article 21of the Constitution of India
wherein it has stated that no person shall be deprived of his
life or personal liberty except according to procedures
established by law.

On balancing the security of a community and that of

personal security Lord Atkinson observed in Rex V. Haliday42,
‗however precious the personal liberty of the subject maybe,
there is something for which it maybe, to some extent,
sacrificed by legal enactment, namely, national success in the
war, or escape from national plunder or enslavement‘. From
the above it is seen that there are conflicting interest as to the
security of the society and that of the personal security and

40
Mohamed Karim V. State of W. Bengal: AIR 1973 SC 207
41
AIR 1974 SC 183
42
1917 AC 260

59
personal liberty. While both are the wheels of the society
weightage given to either of one will give a breakage to the
function of the society at the same time an individual is a
constituent of the said society for which alone the society
exists. In State of Punjab V. Sukhpal Singh43 the Hon‘ble
Supreme Court stated, ‗Social security is no doubt the most
important goal of the State but it is not the only goal of a good
society. Libertas omnibus rebus resest. Liberty is an
inestimable thing above price. It would be ironic if in the name
of social security we would sanction the subversion of this
liberty or the laws for depriving a citizen of his personal
liberty, it is duty of the courts to see that the procedures is
strictly observed‘. This judgement concludes that while social
security is a must for the benefits of society at large, the
personal liberty of an individual should not be curtailed or
deprived at the cost of the society for a society exists for the
benefits of an individual of which the individual is a constituent
component.

Hence, it is clear that while social security is a must for the

benefits of society at large, the personal liberty of an individual
should not be curtailed or deprived at the cost of the society
for a society exists for the benefits of an individual.

(ii) Human rights and custodial violence

The words ‗Human Rights‘ and ‗Police‘ are of great importance
in a welfare state. Human rights of an individual come into
existence from the very day he or she takes his or her first

43
AIR 1990 SC 231: 1990 CrLJ 584

60
breath and it has been correctly said that the idea of human
rights is bound up with the idea of human dignity. The police
on the other hand are considered to be the protector of the
citizens. The whole society solely depends upon the police for
its safety.

Police, the largest and the most important law-enforcing

agency, has no doubt, a special responsibility for the
protection of human rights. But its role as a protector of
human rights takes a beating when the protectors of human
rights themselves are accused of violating the same. There is
no point, denying the fact that human rights violation takes
place quiet widely during the arrest and interrogation of
suspects.
As long as the methods adopted by police in course of their
prescribed duties do not exceed humanitarian limits, they can
be justified. However, at times policemen surpass the legal
limits of the use of violence and adopt the brutal way of
extracting confession. The methods are not only contrary to
the laws of the land but also are in gross violation of human
rights and undermine the human dignity. The developing
human rights jurisprudence demands that this dangerous
practice should be eliminated completely.

Human rights including rights of an accused find its expression

in our constitution and various national and international
declarations and various legislations relating to human rights.

61
What are human rights?

Human rights are not an alien concept but an essential part of

Indian philosophy. They were incorporated in the Indian
Constitution as fundamental rights much before their general
acceptance in the western countries.
Human right has been defined under section 2 (d) of The
Protection of Human Rights Act, 1993. It runs as under: -
Human rights means the rights relating to life, liberty, equality
and dignity of the individual guaranteed by the Constitution or
embodied in the International covenant and enforced by courts
in India.

Individual liberty is a cherished right 44 therefore liberty is

the most cherished possession of an individual, violation of it,
be it at the hands of the executive or police irrespective of
Police Custody or Judicial custody, is a matter of gravest
concern to all who believes Human Rights. While social interest
in individual liberty may be well have to be understood
subordinated to other greater social interests for law ensures
and protects the greater social interest simply because that
will be a wholesome and beneficent law although it may
infringe the liberty of some individual. This ensures greater
liberty to the members of the society though it forecast further
that there couldn‘t be absolute liberty. It should be noticed
that International covenant on civil and political rights wherein
under Part III: Article 6 Clause (1) states as under: -
‗Every human being has the inherent right to life; this right

44
Ved Prakash V. State of Gujarat: 1998 Cri LJ 685

62
shall b protected by law. No one shall be arbitrarily deprived of
his life‘.
Article 7 runs as under: -
‗No one shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment, in particular, no one shall
be subjected without his free consent to medical or scientific
experimentation‘.

Article 14 of Indian Constitution is in compliance with the

Article 7 of Universal Declaration of Human Rights which runs
as under: -
‗All are equal before the law and are entitled without any
discrimination of equal protection of the law. All are entitled to
equal protection against any discrimination in violation of this
declaration and against any incitement to such discrimination‘.
Article 21 of the Indian Constitution is in compliance with
Article 3 and 9 of the above declaration.
Article 3 says, ‗Everyone has the right to life, liberty and
security of person‘.
Article 9 says, ‗No one shall be subjected to arbitrary arrest,
detention or exile‘.

Atrocities committed by the police on those they are

meant to protect are regular entries in crime rosters across the
country. Custodial deaths are perhaps the worst form of
abuse, and according to recent figures put out by the National
Human Rights Commission (NHRC), Bihar tops the list of
offenders in custodial death cases, followed by Uttar Pradesh
and Maharashtra. Right since the sixties, various commissions

63
had suggested reforms to clean up the force, but they haven't
been acted upon.

Public Interest Litigation is the strategic arm of the Legal

Aid Movement and aims at bringing justice within the reach of
the poor vulnerable masses and helpless victims of Injustice45,
J. Bhagwati of SC of India in AIR 1982 SC 14946. It is a very
good way to make basic human rights meaningful.

Human dignity

The right of human dignity belongs to all human being

irrespective of his being inside or outside the prison or
irrespective of custody. In our world prisoners are still
laboratories of torture, warehouse in which human
commodities are sadistically kept and where spectrums of
inmates range from drift – wood juveniles to heroic
dissenters.47It has been expressed in many judicial decisions
that Article 21‘s guarantee of the right to life and personal
liberty is not confined to right to physical existence but also
includes within its scope and ambit the right to live with basic
human dignity, and, the State could not deprive any of this
right by procedure not regarded as fair, just and reasonable.
In many cases Supreme Court has tried to protect human
dignity at any cost, keeping the value of life, as life of a person
cannot be measured in money.
The practices adopted by police during interrogation includes
gross forms of violence, I.e. custodial violence, which cannot

45
S.P. Gupta V. U O I: 1981 Supp. SCC 87: AIR 1982 SC 149
46
S.P. Gupta V. U O I: 1981 Supp. SCC 87: AIR 1982 SC 149
47
Sunil Batra Vs. Delhi Admn. : 1978 (4) SCC 6

64
be justified on any ground, be it related to intensity of crime or
any other factor as it undermines human dignity, which is part
and parcel of life itself. Brutalities indulged in by police, in
solving crimes forfeit the trust of people and the judiciary and
also affect the image of police organisation as a whole beside
exposing them to criminal liability.

65
 CHAPTER-VII
Safeguards for curbing custodial
violence

Custodial violence is a matter of grave concern in every

civilised society . The rapid growth in the incidence of
custodial violence in India has caused increasing panic among
the citizens. In this section, we will look into some legal
provisions against custodial violence by Police. This will help
to enquire whether these provisions are satisfactory and what
further measures are necessary to deal with the problem.

(i) International Protection

(a) Universal Declaration of Human Rights, 1948,

which marked the emergence of a worldwide trend or
protection and guarantee of certain basic human rights,
consists of 30 articles and was adopted by General
Assembly on the 10th December 1948. It is proclaimed
as a common standard to achieve by all people and all
nations, and called upon all member states and all
peoples to promote and secure the effective recognition
and observance of the rights and freedom set forth there
in. This declaration confers both civil and political rights
(Art 3 to 21) and economic social and cultural right (Art
22 to 27). It recognises the dignity of the individual
human being who is born free and entitled to all rights
and freedom of man without any distinction of race,
colour, sex, language, religion or other difference of

66
 origin. It provides for right to life and property. Prohibit
inhuman treatment like torture or cruel inhuman or
degrading treatment or punishment.48 Further, nobody
should be subjected to arbitrary arrest, detention and
exile.49

(b) The Covenant on Civil and Political Rights,

1966, is devoted to the traditional civil and political
rights set forth in the universal declaration of human
right. The covenant thus protect, the right to life 50,
prohibit torture or cruel, inhuman or degrading treatment
or punishment51 prohibit arbitrary arrest or detention52,
provides all persons deprived of their liberty shall be
treated with humanity53. It also states that all persons
are equal before the law and are entitle to its equal
protection.54

(c) Convention against Torture and other Cruel,

Inhuman or Degrading Treatment or Punishment,
1984, obliges state parties to take effective legislative,
administrative, judicial or other measure to prevent act
of torture. No exceptional circumstances whatsoever,
whether a state of war or a threat of war, internal
political instability or any other public emergency can be
invoked to justify torture. Even an order from superior

48
Art. 4
49
Art. 9
50
Art. 6
51
Art. 7
52
Art. 9
53
Art. 10
54
Art. 26

67
 officers or a public authority may not be invoked as a
justification of torture.55

(d) Other Conventions

(i) Geneva Convention relating to the treatment of
Prisoners of War, 1949
(ii) Standard Minimum rules for the Treatment of
Prisoners, 1955
(iii) Declaration on the Protection of All Persons from
Being Subjected to Torture and other Cruel,
Inhuman or Degrading Treatment or Punishment,
1975
(iv) Code of Conduct of Law Enforcement Officials,
1979
(v) Guiding Principles for Crime Prevention and
Criminal Justice in the context of Development
and a New International Order, 1985
(vi) Body of Principles for the Protection of All Person
under any form of Detention or Imprisonment,
1985

Indian obligation to International Convention

Article 51 (c) of the Indian Constitution provides that the state

shall endeavour to foster respect for international law and
treaty. Further, India is a party to many of the aforesaid
conventions and declarations and thus in under an obligation
to take effective steps to implement them.

55
Art. 2 Part 3

68
Article 253 of the Indian Constitution provides that State shall
make domestic laws under international obligations. In
pursuance of same, National Human Rights Commission and
State Human Rights Commission.

(ii) National Protection

(a) Constitutional Mandate and Rights of an Accused

The Constitution of India, carries out an impressive list of

fundamental rights. These rights are fundamental in the sense
that a citizen can move the Supreme Court and High Court for
its enforcement in case of its illegal deprivation by State. The
Constitution includes most of the provisions of Universal
Declaration of Human Rights, International covenant on civil
and political rights and various other international instruments.

The Constitution guarantees certain rights to citizens and the

Supreme Court has held that a person in no way shed out his
fundamental rights, the moment he is arrested. There are
certain other statutory provisions in confirmation with the
Constitution during rights to an accused person. The judiciary
has also expanded the horizons of these rights through
creative interpretation of the Constitution.

(b) Right to life

One of the most basic and fundamental right given to a

69
 person including the prisoners /suspects/accused persons is
the right to life. The right to life is incorporated in Article
21 of the Constitution. The says, "No person shall be
deprived of his life and liberty except according to
procedure established by law." Time and again, the
judiciary has interpreted article 21 in such a way so as to
expand its horizon. This right is basic of all human rights as
all other rights are dependent upon this right.

The apex court has elaborated the immunity against torture

to the status of fundamental right under article 21, though
it is not specifically enumerated as a fundamental right. In
the case of Maneka Gandhi v/s. Union of India56, the
Supreme Court said that the procedure for deprivation of
life and liberty could no longer be any procedure. It held
that procedure contemplated in article 21 must be " right,
just and fair" and not "arbitrary, fanciful or oppressive".

Thus, this implies that if a person is to be arrested or

detained in custody, thus depriving him of his personal
liberty, the procedure adopted for arrest and detention
should be just and fair and not torturous or brutal and if
violence is done, it will be regarded as violation of 'right to
life'.

(c) Right against self-incrimination

56
AIR 1978 SC 597

70
 One of the motives of torture is to extract from the suspect
for the crime he is alleged to have committed. He is
subjected to various kinds of torture until he breaks down
and finally makes a confessional statement. However he
has a right to refuse to answer all self-incriminatory
questions.

Right against self incrimination is again listed in the

International Covenant of Civil and Political Rights,u/a
14(3)(g). The Constitution of India also confers this right to
the suspect or accused personsu/a 20(3) that no person
accused of an offence shall be compelled to be a witness
against himself. The Indian Evidence Act, 1872 and the
CrPC 1973 also prohibit forced confession or testimony as
inadmissible in the court of law and protect accused person
against such confession.

The Supreme Court widely elaborated this right in its

various judgments. In Nandini Satpathy v/s. P.L.Dani57, the
court said that, if there is any mode of pressure, subtle our
crude, mental or physical, but sufficiently substantial
applied by Police in obtaining information, it becomes a
compelled testimony violative of the right against self-
incrimination. The court also said that compulsion may be
presumed in the case of custodial interrogation by police
unless certain safeguards erasing duress are adhered to.

57
AIR 1978 SC 1025

71
 But police violates this right the most and they frequently
use torture to extract information.

(d) Right to Consult a Legal Practitioner

Article 22(1) of the constitution also confers on the

arrested person, the right to consult the legal practitioner
of his own choice and to be defended by him. The
International Covenant on Civil and Political rights also
provides the same right to the accused person u/a
14(3)(b). This constitutional right has also been given
statutory recognition and is incorporated in Section 303
of CrPC1973.

The right begins as soon as he is taken into Police

custody in relation to criminal proceedings. Later on
Supreme Court in Nandini Satpathy v/s. P.L. Dani,
extended the operation of this right 'to any accused
person under circumstances of custodial interrogation.
The court held that while undergoing interrogation in
police custody, he has a right to have his lawyer by his
side. This can help in reducing the cases of violence
during interrogation.

(e) Right to be produced before magistrate within

24 hours of Arrest

This is also a very important and valuable right of an accused

person u/a 22(2) of the Constitution. Section 57 along with
Section 167 (2) of CrPC 1973 also provides for this. The

72
magistrate can either order release of accused on bail or
remand him to police custody to facilitate the further
investigation of the case. The maximum period of the police
remand is 15 days.

The purpose of this provision is to get the legality of the

arrest and detention, judicially examined without
unnecessary delay and to put a limit on police power of
arrest. This right of the accused person has been
constitutionally guaranteed and is inviolable by ordinary
legislation.

(f) Bar against Hand-cuffing

Suspect or accused persons in parade in the road by the
police, while taking them to court or jail. This makes them
fell humiliated and puts them in lot of inconvenience. A
person is to be considered innocent unless proved guilty
beyond doubts by the Court is an axiom of our legal system.
But a person stands punished by this humiliation though he
may be subsequently be acquitted by the court.

The Supreme Court examined the validity of handcuffing in

light of right to personal liberty contained in article 21 in
Prem Shankar Shukla v. Delhi Administration58, The court
was of the view that handcuffing is prima facie in human
and therefore unreasonable, is over harsh and arbitrary.
The Court further said that handcuffing of prisoners without

58
AIR 1980 SC 1535 : 1980 Cri LJ 930 : (1980) 3 SCC 526

73
 adequate reasons in writing is against Article 21. For
handcuffing, judicial approval has to be obtained.

These are some of the constitutional rights of the accused,

which if followed and exercised properly, can reduce the
cases of custodial violence to a large extent.

(iii) Other Statutory Provisions

Apart from the rights guaranteed to the accused person

under the Constitution, there are certain other statutory
laws which aim at preventing custodial torture. These
provisions are both substantive and procedural. They are
as follows : -

(a) Substantive Law

Transparency of action and accountability are the two possible

safeguards to check the abuse of power by the Police. A mere
declaration of invalidity of an action or finding of custodial
torture or death in lock-ups, does not by itself provided any
meaningful remedy to a person whose fundamental rights
have been infringed. The IPC, 1861 and The Police Act, 1861
provide for some punitive measures. Section 220 of the
Indian Penal Code, 1861 provides for punishment of an officer,
who in exercise of his office, which gives him legal authority
commits any person for trial or keeps him in confinement,

74
corruptly or maliciously. The punishment may extend to seven
years of imprisonment.

Section 330 of IPC provides for punishment of those officers

who voluntarily causes hurt for the purpose of extorting any
confession or any information which may lead to detection of
an offence or misconduct or for the purpose of constraining the
person or to cause the restoration of any property or valuable
security or to give information which may lead to restoration of
any valuable security or property. The punishment may
extend up to seven years and also to fine.

Similarly, Section 331 of IPC provides for punishment of ten

years and also fine to those officers who inflict grievous hurt
for the purposes mentioned in Section 330.

Presumptions in cases of custodial violence. Adding a sub-

section to S.302 IPC. No arrests in bailable offence.

In case of Emperor vs. Miran Baksh & another59, the Court

held that the deceased who was suspected of having taken
part in a theft case was in custody of police and was beaten by
police officers and the beating resulted in his death. The
accused were guilty of an offence under Section 331 of the
Penal Code.

One way of curbing custodial violence is to make such activity

on the part of police officers a crime punishable either

59
(1917) 18 Cri.LJ 710

75
judicially or departmentally. But experience shows that this
sanction has not proved effective. Section 7 of the Police Act
1861 empowers the higher police officers to "dismiss, suspend
or reduce any officer of the subordinate ranks whom they shall
think remiss or negligent in discharge of his duty or unfit for
the same." Lesser punishments can also be awarded. Section
29 of the Act provides that any police officer violating the rules
and regulations including any police officer who shall offer any
unwarrantable personal violence to any person in his custody
shall be punished with three months‘ rigorous imprisonment.
All this has meant nothing in practice. This can be changed
only by developing a culture of respect for human rights and
rule of law among the police personnel - something akin to
what obtains in the United Kingdom.

Section 29 of the Police Act, 1861 also lays down that the
torture in custody is a punishable offence. In addition, various
Police Acts at the State level prescribe against the custodial
torture and direct the SHO or in charge to keep the suspects
safe from any physical assault while in the police custody.

Being concerned with the problem of rape (including custodial

rape), the Parliament made certain amendments in the IPC,
1861 and the Indian Evidence Act, 1872 by Criminal Law
Amendment Act, 1983. The Amendment specifically defined
custodial rape and provided for a more stringent punishment
for it. The said Amendment also introduced Section 113-A in
the Indian Evidence Act, 1872 and shifted the burden of
proving the consent from the prosecution to the accused.

76
The said Amendment added Section 376 B and Section 376-C,
which relates to sexual intercourse in police custody. Section
376-B provides that if a public servant uses his official
opposition to induce or seduce any women in his custody to
have sexual intercourse with him and the offence does not
amount to rape, he shall be punished for imprisonment up to
five years and fine. Section 376-C is directed against
superintendent or manager of a jail or remand home.

These provisions can really safeguard the rights of a person in

custody of police. But due to various practices followed by
police and the problem in bringing such cases to book (as
discussed earlier) these provisions prove to be insufficient.

(a) Procedural Law

The CrPC, 1973, requires certain procedures to be observed

in dealing with the arrest and detention of an accused
person. Here are some procedures, which can act as
safeguard. Section 41, Cr PC, confers powers on any police
officer to arrest a person under the circumstances specified
therein without any warrant or order of arrest from a
magistrate. Section 46 provides the method and manner of
arrest. Section 49 says that police is not permitted to use
restraint more than necessary to prevent the escape of the
person. Section 50 enjoins every police officer arresting any
person without warrant to communicate to him the full
particulars of the offence for which he is arrested and the
grounds for the arrest. The police officer is further enjoined

77
to inform the person arrested that he is entitled to be
released on bail and he may arrange the sureties in the
event of his arrest for a non-bailable offence.

Further, Section 56 contains a mandatory provision

requiring the Police Officer making an arrest without
warrant to produce arrested person before a magistrate
without unnecessary delay, i.e. within 24hours (Section 57)
of arrest in the absence of special order from a magistrate
U/S. 167. This section echoes Article 22(2) of the
constitution.

Section 167 also provides certain safeguards to the

arrested person. It says that whenever any person is
arrested and detained in custody, and it appears that the
investigation cannot be completed within the period of 24
hours fixed by section 57 and if the accusation is well
founded then, police officer shall transmit to the nearest
magistrate, a copy of the entries in diary and such
magistrate may authorize the detention of the accused in
such custody, not exceeding a period of 15days.
Section 176 requires the magistrate to hold an enquiry
into the cause of death of a person, who dies in the
custody of Police. Fixing time limit for finalizing such
enquiries. Publication of such proceedings in the gazettes.
The Amnesty International report observed that this
provision is highly disregarded.

Now it is an undenied fact that presence of inhuman

78
 treatment or torture by those persons who deal with
criminal and crime detection department is an essential
part for further detection and guiding factor in solving
problems which relate to society. Taking Indian Law in
view, S.161 Cr.PC empowers any Police Officer
investigating crime or any other police officer acting on his
requisition to examine orally any person supposed to be
acquainted with the facts and circumstances of the case.
The provision further provides that such person shall be
bound to answer all questions relating to such case put to
him by such officer, other than questions answers to which
would have a tendency to expose him to a criminal charge
or to a penalty or forfeiture.

It is worth noting that, S. 163 (1) of the Code, prohibits

any police officer from making any inducement, threat, or
promise for the purpose of obtaining statement (as
mentioned in S.24 of Indian Evidence Act, 1872). Thus,
provisions of S.163 Cr.P.C. emphasizes that S.161 Cr.P.C.
doesn‘t authorize the police officer to beat or to confine a
person with a view to induce him to make a statement60.

Writ of Habeas Corpus

Writ of Habeas Corpus is a constitutional remedy which can be

obtained through courts, whenever a person is illegally
detained, whether in Police custody or by some private person.

60
State of A.P. V. N. Venugopal and others: AIR 1964 SC 33

79
Habeas corpus is an order issued by the High Court or
Supreme Court calling upon the person by whom a prisoner is
alleged to be kept in confinement to bring such person before
the court to let the court know on what grounds the prisoner is
confined. If no legal justification is there for the detention, the
person is ordered to be released.

Halsbury‘s law of England defined it as:

‗Writ of habeas corpus is a prerogative process for securing the
liberty of the subject by affording an effective means of
immediate release from unlawful or unjustifiable detention and
is available against the executive.‘
Such a writ can be obtained through or enforced by the
Supreme Court of India U/Art. 32 or any High Court U/Art.
226, for seeking liberty because a person cannot be deprived
of his fundamental rights U/Art. 21 by the State on illegal
grounds. Only the law in the interest of the society can curtail
his right to liberty. Thus, the curtailment of this human right is
to be provided by the law. If it is proved that the detention is
malafide and is made with ulterior motive, he has got to be
released.

For an application of Habeas Corpus, infringement of

both Articles 21 and 22 is a condition precedent 61. It is a
process by which a person who is confined without legal
justification may secure a release from his confinement. It is
an order issued by the High Court or Supreme Court calling
upon the person by whom a prisoner is alleged to be kept in

61
Harish V. UOI: AIR 1973 SC 258, RB Rajbir V. State of W. Bengal: AIR 1975 SC 623,
Janardan Reddy V. State of Hydrabad: AIR 1951 SC 217

80
confinement to bring such person before the Court to let the
Court know on what ground the prisoner is confined. If not
legal justification is there for detention, the party is ordered to
be released. Therefore infringement of fundamental rights
being a precondition to the right to move a complaint or a
Habeas Corpus application under the Article, every petitioner
or complainant has to establish that his fundamental rights
had been infringed. This being so, a person arrested under the
code on criminal charges has to seek remedies under the code
only and not under the Articles62. This right is available not
only to a person detained in police custody but also to any
illegal confinement of freedom in private life. An application for
Habeas Corpus can be made by any person on behalf of the
prisoner as well as by the prisoner himself, subject to the
conditions framed by the various High Courts63, for Supreme
Courts, the rule contained under Order XXXV Rule 1 to 6 of
Supreme Court Rules.

The history of Habeas Corpus is the history of the conflict

between power and liberty. When the executive infringes the
liberty of the citizen illegally this remedy can be sought for.
‗Habeas Corpus‘ literally means ‗have the body‘. It has been
described as the ‗Magna Carta‘ of English Liberty. It has been
acclaimed as a ‗Palladium of Liberty‘ of the common man.

Habeas Corpus Ad Sub-Juciendum, which is commonly

known as Habeas Corpus, is an exception to the rule of res

62
Bhabhdev V. State of W. Bengal: 1972 UJ 625(SC)
63
Constitution of India, Pg 381 (by D.K. Singh)

81
judicata (a thing adjudicated upon or a case that has been
decided).

82
 CHAPTER-VIII
Compensatory Remedy

(i) Providing reparation to victims of torture

Despite the sorry state of affairs on the part of government of

India to provide for monetary compensation and punitive
measures, the judiciary in India has dealt with these problems
in very rational manner. It provides another very important
illustration of judicial activism, regarding compensation in
cases of custodial violence.

The Supreme Court has crystallised the judicial right to

compensation, in cases of custodial violence which was later
reaffirmed in D.K. Basu‘s case(Supra). In that case the apex
Court had observed that since compensation was being
directed by the courts to be paid by the State, the reservation
to clause 9(5) of International Covenant on Civil and Political
Rights (ICCPR) by the Government of India had lost its
relevance. !n fact, the sentencing policy of the judiciary in
torture-related cases against erring officials in India has
become very strict. For an established breach of fundamental
rights, compensation can now be awarded in the exercise of
public law jurisdiction by the Supreme Court and High Courts
in addition to private legal remedy for tortuous action and
punishment to the wrongdoer under criminal law. To undo the
wrong done and give judicial redress for legal injury to the
victim is a compulsion on judicial conscience.

83
 While making an award for compensatory damages in
proceedings other than through private law remedies, it is not
the harm suffered by an individual, which is an issue, it is the
quality of conduct committed by the delinquent upon which
attention must be focused. The delinquent should pay a sum
which marks the society‘s condemnation of his behaviour and
which is of sufficient significance to punish it effectively. Award
of exemplary and punitive damages can be made only to
provide recompense to the party for conduct, which requires
condemnation by the courts. These are not aimed at
compensating the victim or his heirs but to punish the
delinquent for his high-handed disregard of the victims‘ rights.
Indeed, no amount of compensation can revive a physical
frame battered and shattered by torture but it would be some
solace to the victim or his heirs if the courts express the
society‘s intolerable behaviour of the tormentor and award
compensation as recompense. The State should be made liable
to pay the compensation initially with its right to recover it
from the delinquent so that the victims or their heirs are not
left to the mercy of the tormentor to recover the amount of
compensation awarded by the courts.

The Supreme Court has declared that where the

infringement of the fundamental right is established, it cannot
stop by giving a mere declaration. It must proceed further and
give compensatory relief, not by way of damages as in a civil
action but by way of compensation under the public law
jurisdiction for the wrong done due to the breach of public
duty by the State in not protecting the fundamental right of
the citizen. This is a progressive approach as civil action for

84
damages is a long drawn and cumbersome judicial process and
most often the victim or the family of the victim is not in a
position to undertake such a venture.

Article 9 (5) of the International Covenant on Civil and Political

Rights, 1966 (ICC PR) provides that "anyone who has been the
victim of unlawful arrest or detention shall have enforceable
right to compensation." There is indeed no express provision
in the Constitution of India for grant of compensation for
violation of fundamental right to life, nonetheless the court has
judicially evolved a right to compensation in cases of
established unconstitutional deprivation of personal liberty or
life.64

Section 330 of IPC makes torture punishable under IPC. The

statutory provisions are however inadequate to repair the
wrong done to the citizen. Prosecution of the offender is an
obligation of the State in case of every crime but the victim of
crime needs to be compensated monetarily also. The court,
where the infringement of the fundamental right is
established, therefore cannot stop by giving a mere
declaration. It must proceed further to give compensatory
relief, not by way of damages in a civil action but by way of
compensation under the public law jurisdiction of the wrong
done, due to breach of public duty by the State. (D.K.Basu
v/s. State of West Bengal- AIR 1997 SC 610) To repair the
wrong done and give judicial redress for legal injury is a
compulsion of judicial conscience. In a number of instances,
monetary compensation has been granted to victims of torture
64
D.K.Basu v/s. State of West Bengal AIR 1997 SC 610

85
and relatives of those who have died in custody, by the Courts.
The NHRC has taken a leading role in calling for victims and
their relatives to be provided promptly with monetary
compensation, commonly recommending "interim" payment of
Rs 2 lakh in custodial death cases. In October 1995 the NHRC
suggested that monetary compensation for victims of police
abuse should be taken from those responsible not from State.
State governments have reportedly accepted this proposal.
In re Sawinder Singh Grover65, on the report submitted by
Additional District Judge , Delhi, it was found that story given
by police indicating the circumstances, leading to death of
Sawinder Singh on account of suicidal jump was not truthful.
There was a strong suspicion of misfeasance torture. On this
fact, the Apex court directed the CBI to ensure that the F. I. R.
is registered on the facts as emanating from the order and
report of the Additional District Judge and further direction was
given to pay a sum of Rs 2 lakhs as ex gratia payment to the
widow of the deceased.

In Sametri Devi Vs. State of Jharkhand66, the High Court of

Jharkhand dealt with the compensation for victims of extrimist
violence. Two widows moved the writ petition. An extrimist
group killed their husbands and destroyed their property. They
approached the District Commissioner who granted them Rs.
30,000. they pointed out that in an earlier case similar to their
and in same locality, State Government had paid Rs. 1 Lakh to
the heirs of the murdered persons and were also given
government jobs. The court held that in similar circumstances

65
1994 SCC (Cri) 1464
66
2003 CrLJ 2768 (Jhar)

86
the government had paid Rs.1lakh to heirs of terrorist victims,
there was no ground to discriminate these two widows in the
matter of payment of compensation. The State was directed to
give each widow Rs. 1 lakh.

In Jagat Dhar Vs. State of Assam67, the Gauhati High Court

awarded Rs. 5 lakh as compensation to an old man, whose son
was shot by a policeman for no reason. The youth was an
engineer aged 29 years. While he was taking an evening stroll,
the policeman who had a quarrel with someone opened
indiscriminate fire from his gun as a result the youth died in
the hospital.

67
AIR 2003 Gau 101

87
 CHAPTER-IX
National Human Rights Commission
on Custodial Violence

To give affects to various UN convention on Human Rights and

to curb the international criticism for alleged violation of
human rights by security forces while dealing with terrorist in
Kashmir & North Eastern States and Naxalies in Andhra
Pradesh. The president of India promulgated an ordinance on
28th Sept. 1993, which established National Human Rights
Commission. Thereafter an Act by the name of 'Protection of
Human Rights Act, 1993 was passed by the Parliament which
received president assent on 8th January 1994 was passed to
replace the ordinance. However since National Human Rights
Commission has already been established therefore the article
1(3) provide that the Act have come into force retrospectively
from on 28th Sept. 1993.

As apparent from the preamble of the Act which provides that

it is an "Act to provide for: the constitution of a National
Human Rights Commission, State Human Rights Commission
in States and Human Rights Court for better protection of
human rights and for matters connected therewith or
incidental there to, main object of the Act was to create
National Human Right commission at centre as well as in
states to check the violation of all kinds of human rights.

As per section 2 (d) of the Act human rights, means the rights
relating to life, liberty, equality and dignity of the individual

88
guaranteed under the Constitution or embodied in the
international covenant enforceable by courts in India.

Section 3(1) of the Act empowers the Central Government to

constitute a body to be known as the National Human Rights
Commission which shall exercise power conferred upon,
perform the function assign to it under the 'Protection of
Human Rights Act, 1993' which are as follows: -68

(a) Inquire suo-motu or on a petition presented to

it by victim or any other person on his behalf into
complaint of
(i) Violation of human rights or abetment thereof;
(ii) Negligence in the prevention of such violence by
a public servant;
(b) Intervene in any proceeding involving any
allegation violation of human rights pending before
a court with the approval of such court;
(c) Visit, under intimation to the State
Government, any jail or any other institution under
the control of the State Government, where persons
are detained or lodged for purposes of treatment,
reformation or protection to study the living
conditions of the inmates and make
recommendations thereon;
(d) Review the safeguards provided by or under
the Constitution or any law for the time being in
force for the protection of human rights and

68
Section 12 of Protection of Human Rights Act, 1993.

89
 recommend measures for their effective
implementation;
(e) Review the factors, including acts of terrorism
that inhibit the enjoyment of human rights and
recommend appropriate remedial measures;
(f) Study treaties and other international instruments
on human rights and make recommendations for
their effective implementation;
(g) Undertake and promote research in the field
of human rights;
(h) Spread human rights literacy among various
sections of society and promote awareness of the
safeguards available for the protection of these
rights through publications, the media, seminars
and other available means;
(i) Encourage the efforts of non-governmental
organisations and institutions working in the field of
human rights;
(j) Such other functions as it may consider necessary
for the protection of human rights.

The Commission may inquire in to the complaint as follows69:

The Commission while inquiring into the complaints of

violations of human rights may-

(i) call for information or report from the Central Government

or any State Government or any other authority or

69
Section 17

90
organisation subordinate thereto within such time as may be
specified by it;

Provided that-
(a) if the information or report is not received within the time
stipulated by the Commission, it may proceed to inquire into
the complaint on its own;

(b) if, on receipt of information or report, the Commission is

satisfied either that no further inquiry is required or that the
required action has been initiated or taken by the concerned
Government or authority, it may not proceed with the
complaint and inform the complainant accordingly;

(ii) without prejudice to anything contained in clause (i), if it

considers necessary, having regard to the nature of the
complaint, initiate an inquiry.

Steps after inquiry are as follows70:

The Commission may take any of the following steps upon the
completion of an inquiry held under this Act namely :

(1) Where the inquiry discloses, the commission of violation of

human rights or negligence in the prevention of violation of
human rights by a public servant, it may recommend to the
concerned Government or authority the initiation of
proceedings for prosecution or such other action as the
Commission may deem fit against the concerned person or
persons;

70
Section 18

91
(2) Approach the Supreme Court or the High Court concerned
for such directions, orders or writs as that Court may deem
necessary;

(3) Recommend to the concerned Government or authority for

the grant of such immediate interim relief to the victim or the
members of his family as the Commission may consider
necessary;

(4) Subject to the provisions of clause (5), provide a copy of

the inquiry report to the petitioner or his representative;

(5) The Commission shall send a copy of its inquiry report

together with its recommendations to the concerned
Government or authority and the concerned Government or
authority shall, within a period of one month, or such further
time as the Commission may allow, forward its comments on
the report, including the action taken or proposed to be taken
thereon, to the Commission;

(6) The Commission shall publish its inquiry report together

with the comments of the concerned Government or authority,
if any, and the action taken or proposed to be taken by the
concerned Government or authority on the recommendations
of the Commission.

As per annual reports of National Human Rights Commission it

received 496 complaints of human right violation in year 93-94
while it received 6835 complaint in the year 94-95 i.e. an
increase of 6 1/2 times. The number of complaints has gone
up to 25317 complaints as mentioned in the report of 2004-

92
2005. In year 2005-2006 report the details of number of
complaint National Human Rights Commission admitted state
wise are as under:

93
94
95
96
97
98
The National Human Rights Commission, in its report have
shown its deep-concern over the increase in the incident of
custodial death and torture as a number of custodial death
which was 34 in the year 1993-1994 has gone up to1305 in
year 2001- 2002.

The total number of cases registered in the Commission in

2002-2003 was 68,779 while the corresponding figure for the
year 2001-2002 was 69,083. Of the cases that were registered
during the year under review, 67,354 were complaints of
human rights violations, 1340 related to custodial deaths, 2
concerned custodial rapes and 83 related to police encounters.
Of the custodial deaths that occurred in the course of 2002-03,
183 deaths occurred in police custody and 1157 in judicial
custody, most of the latter resulting from illness, old age or
similar factors.

The NHRC has continued to act with great determination to

end the Incident of custodial deaths, rapes and other incidents
of violation of human right that has jolted the law and order
machinery of the country. Some of the cases, which are
mentioned below are illustrative of the functioning of the
Commission.

(i) Death in custody of former Sarpanch of Gogon

Village, Chuhur Singh due to negligence: Punjab (Case
No.431/19/ 2000-2001)

99
The Commission took suo motu cognizance of a newspaper
report published in 'The Tribune' of 11 September 2000 about
the death of a former Sarpanch of Gogon Village, Chuhur
Singh, while in police custody on 10 September 2000. The
victim had allegedly been arrested in a poppy-husk smuggling
case and had died in the hospital while in custody.

In response to the Commission's notice, the District

Magistrate, Hoshiarpur, submitted a report. It indicted the
Assistant Sub-Inspector, Mahilpur Police Station, for
negligence. It was indicated in the report that he had acted
against the advice of the doctor on emergency duty, and had
taken Chuhur Singh to the court thus worsening his condition.
A departmental
enquiry had, therefore been initiated against the Assistant Sub
Inspector. The report, however, denied any torture or beating
by the Mahilpur police, as alleged by relatives of the deceased.

In view of this finding of negligence in providing timely medical

aid, the Commission issued a notice to the Chief Secretary,
Government of Punjab to show cause, within four weeks, as to
why Rs. 50,000/- be not paid as immediate interim relief
under section 18 (3) of the Act to the next of kin of the
deceased.

In its proceedings dated 22 May 2002 the Commission

considered the reply from the Government of Punjab which
stated that the question of compensation be kept in abeyance
till the finalization of the enquiry. The Commission, however,

100
overruled this objection and pointed out the purpose of Section
18 (3) of the Act, viz. the provision of immediate interim relief
in instances where a strong prima facie case of the violation of
human rights had been made out. This did not need to await
determination of final liability in another proceeding. The
Commission observed that the concept of immediate interim
relief ceases to be meaningful if it is subjected to the final
determination of the existence of the guilt of the violator. The
Government of Punjab was accordingly directed to pay the
compensation.

(ii) Death of Karan Singh in police custody due to

violence: Madhya Pradesh (Case No.1935/12/2000-
2001-CD)

The Commission received a communication dated 24 October

2000 from the Collector and District Magistrate, Morena,
Madhya Pradesh stating that, on the basis of an information
received, police personnel from the Ambah Police Station had
conducted a raid and arrested persons involved in gambling on
24 October 2000. It was further stated that one of them,
Karan Singh, who was in an intoxicated condition, was
admitted in the Ambah Hospital, District Morena where he
expired.

Upon notice being issued to the Home Secretary, Government

of Madhya Pradesh, the Sub Divisional Magistrate, Ambah sent
a copy of the magisterial inquiry report on 16 February 2001
which stated that Karan Singh had died in the custody of

101
Ambah Police Station on 24 October 2000 due to custodial
violence and that the Assistant Sub Inspector and Head
Constable were responsible for his death.

On 26 February 2002, the Commission called for a report on

the legal and departmental action taken against the delinquent
police personnel who had been held responsible for the death
of Karan Singh and also issued notice to the Government of
Madhya Pradesh to show cause as to why immediate interim
relief under section 18 (3) of the Act be not granted. The
Home Department, Government of Madhya Pradesh, submitted
a report dated 5 June 2002 which indicated that, on the basis
of a case under section 304 and 34 IPC read with 3 (2) 5
Scheduled Castes and Scheduled Tribes (Prevention of
Atrocities) Act, the accused had been arrested, produced in
court and a charge sheet had been filed in court on 10 May
2001. Further, the widow of the deceased had been paid
interim relief in the amount of Rs.1,50,000 on 6 November
2000. The balance of Rs.50,000/- would be paid upon the
completion of the case in the court. In the light of the action
taken by the State Government, the Commission decided to
close the case.

(iii) Police high-handedness against a Teacher in Kota:

Rajasthan (Case No. 1603/20/2001-2002)
The Commission received a complaint dated 10 October 2001
from Shri Prem Chand, a teacher in the Government School at
Kota, alleging that on 29 September 2001 he was picked-up
by the local Sub Inspector, illegally detained, falsely implicated

102
in a case, tortured and denied food and water during the
period of his detention.

Upon notice being issued to the Superintendent of Police, Kota,

the Commission received an investigation report which
indicated that, while executing a warrant of arrest issued by
the Court of Chief Judicial Magistrate, the complainant was
mistakenly picked-up by the police instead of his namesake,
the latter being wanted in a criminal case. For this lapse on the
part of the Sub Inspector, departmental action had been
initiated against him.

In view of the illegal detention of the complainant and the

clear violation of his human rights, the Commission in its
proceedings dated 14 February 2003 issued a notice to the
Chief Secretary, Government of Rajasthan to show cause,
within 6 weeks, as to why immediate interim relief under
Section 18 (3) of the Act be not given to the victim. As of 31
March 2003, the response of the Government of Rajasthan
was awaited.

(iv) False implication of Navi Ullah under NDPS Act:

Uttar Pradesh (Case No.13501/24/2000-2001)
Shri P.S. Chhabra, Additional Sessions Judge, Lalitpur, sent a
copy of his judgement dated 29 July 2000 in a Case under
Section 20 of the NDPS Act acquitting the accused, Navi Ullah,
and holding that the accused was falsely implicated by the
police, violating his human rights. The judgement contained a

103
request that an independent investigation be made by the
National
Human Rights Commission, or by some other agency, so that
action could be taken against the errant police personnel.

In response to the notice issued to the Chief Secretary,

Government of Uttar Pradesh to show cause as to why
immediate interim relief under Section 18 (3) of the Act be not
granted on the basis of the findings recorded in the above
judgement, the Government of Uttar Pradesh submitted a
report stating that, as a result of an inquiry, the Inspector of
Police Station, Talbehat, and a Sub-Inspector had been found
guilty of non-compliance with the provisions of the NDPS Act
and departmental proceedings had been initiated against
them. The response was, however, silent on the grant of
interim relief.

After considering this matter in its proceedings of 13 January

2003, the Commission awarded an amount of Rs.100,000 as
immediate interim relief to be paid to Navi Ullah by the
Government of Uttar Pradesh. The State Government was also
directed to inform the Commission of the outcome of the
departmental action taken against the delinquent public
servants.

(v) Death of Sanjay Sitaram Mhasker due to custodial

violence: Maharashtra (Case No.210/13/98-99-ACD)
The Commission received a complaint alleging that one Sanjay
Sitaram Mhasker was picked up by the police on 8 April 1998

104
and locked-up in a police station. It was alleged that he died
after being mercilessly beaten by the police and, thereafter, a
conspiracy was hatched to show that he had hanged himself.
It was added that the postmortem had not been conducted
properly. Intervention of the Commission was requested for
the registration of a case of murder against the guilty police
officials and for the payment of compensation.

Upon consideration of the matter, the Commission, by its order

dated 30 July 2001, directed the Government of Maharashtra
to pay a sum of Rs.300,000 as immediate interim relief to the
next of kin of the deceased under Section 18 (3) of the Act. As
the State Government complied with the directions of the
Commission, the case was closed on 3 October 2002.

(vi) Death of Shishu Rebe due to torture in police

custody: Arunachal Pradesh (Case No.74/96-97/NHRC)
The Commission received information from the Inspector
General of Police (IGP), Itanagar, Arunachal Pradesh about the
death of one Shishu Rebe on 29 March 1996. He had been
arrested on 10 March 1996 on a murder charge and kept in
Chiyangtigo a police station lock-up.
By its proceedings dated 16 March 2001, the Commission had
recommended the payment of a sum of Rs.100,000/- to the
next of kin of the deceased and also directed that disciplinary
action be taken against the concerned officers. As the State
Government complied with the Commission's directions, the
case was closed on 4 March 2003.

105
 In its second Annual Report for 1stApril 1998 to 31st
March 1999 … the J&K State Human Rights Commission states
that (Kashmir had) approached the government for opening
…its office at Jammu for hearing complaints from far flung
areas of Doda, Udhampur, Kathua, Rajouri and Poonch
districts (but the government decision (was) still awaited. This
has resulted in stagnation in disposal of cases from Jammu
Division.

The Commission has also reported shortage of accommodation

and staff. (Since) investigating staff has not been provided to
the Commission. The investigating activities of the Commission
are in abeyance.

Performance:

The commission received 227 cases during the period 1998-

99. The break-up of the nature of the cases received by the
Commission during the above period is as under:

Harassment – 76 , Disappearance – 20, Death Compensation –

14, Relief - 20

Shifting of Detenue from one Jail to another - 3

Application for release - 15

Death Investigation - 10

Rape cases - 1

Security Cover - 4

106
Custodial Death - 22

Other Cases - 43

District-wise break up was as follows:

Srinagar - 68 Kupwara - 10

Anantnag - 30 Poonch - 10

Budgam - 25 Rajouri - 10

Pulwama - 27 Jammu - 8

Baramulla - 18 Udhampur - 5

Doda - 14 Kathua – 2

Total - 227

107
 CHAPTER-X
Some Important Judgements on
Custodial Violence

Some Important Judgements on Custodial Violence

(i) Emperor V. Miran Baksh (1917) 18 Cri LJ 710

In this case the suspect who was taken to the police custody
for having taken part in a theft case was beaten by the
Accused (police officer) and resulted in his death, it was held
that the accused was guilty of an offence under IPC.

(ii) Kharak Singh V. state of U.P.: AIR 1963 SC 1295:

1963 (2) Cri LJ
―Liberty is the most cherished possession of man.‖
The protection of life and liberty and protection from or against
arrest of a citizen are contained in our constitution. The
protection of life and liberty of a citizen includes the person so
arrested, as the person so arrested is also a citizen of India
and he is protected by Article 21 of the Indian constitution
and, as much if at all his life and liberty is to be curtailed, it
must be according to Article 21 of the Indian constitution
which says that ‗no person shall be deprived of his life or
personal liberty except according to procedure established by
law‘. The expression personal liberty is not limited to bodily
restraint or to confinement to prison only.

(iii) Gauri Shankar Sharma V. State of U.P., AIR 1990

SC 709 : 1990 (1) Crimes 196 (SC)

108
In this 3 policemen were charged under IPC. They were also
charged under Prevention of Corruption Act, 1947 for
demanding Rs. 2,000/- so as to desist from meeting third
degree punishment to the suspect who died of homicidal
death. The deceased was undisputedly arrested from his
residence and beaten while in police custody and received as
many as 28 injuries according to the medical reports and his
death was attributed due to shock and haemorrhage. Trial
court acquitted the accused from conviction but when the
appeal went to the high court it gave the dissenting
judgement. Further, when the matter reached the Apex Court,
the Supreme Court set aside the acquittal and restored
conviction under section 304 part II and sentenced to seven
years rigorous imprisonment.

(iv) Mrs. Severina Riberio Cardinho V. U.O.I., 1990 (1)

Crimes 11
In this, the person arrested was being subjected to third
degree treatment while in custody resulting to his death,
amounting to violation of Article 21 of the Indian constitution.
Aggrieved person can under such circumstances invoke writ
jurisdiction of high court and plea of sovereign immunity is not
maintainable for police officer treating the person in custody
with third degree method and leading to death of the arrested
person.

109
(v) Kultej Singh Vs. Circle Inspector of Police & others-
1992 Cr.L.J 1173 (Karnatka)
The petitioner Kultej Singh through this petitioner under Article
226 of the Constitution, has sought for issue of a Writ in the
nature of Habeas Corpus directing the respondents to produce
his brother, Sri Hardeep Singh, Respondents in their counter-
affidavit averred that Sh.Hardeep Singh was arrested on
28.09.1990 and was produced before the J.F.M.C. Savanur on
29/09/1990 without any loss of time, however they did not
dispute that Sk. Hardeep Singh was kept in Savanur Police
Station from the morning at 27/09/1990 until he was produced
before the Magistrate as Savanur on 29.09.1990 at 10.30 a.m.

From a reading of sub-section (1) of Section 46 of the Cr.P.C .

It is clear that a police officer to be arrested, he can be said to
have arrested the person. If a person is confined or kept in
the police station or his movements are restricted within the
precincts of a police station, it would undoubtedly be a case of
arrest. In the instant case, the FIR specifically states that
Hardeep Singh was kept in the police station from the morning
of 27.09.1990. Section 57 of the Cr.P.C provides that no
police officer shall detain in custody a person arrested without
warrant for a 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
twenty-four hours exclusive of the time necessary for the
journey from the place of arrest to the Magistrate‘s court.
Thus respondents 1 and 2 were required to produce Hardeep

110
Singh within 24 hrs from the time he was kept in the police
station as Savanur.

(vi) Nilabati Behra @ Laita Behra V. State of Orissa,

1993 (2) SCC 746: 1993 (2) JT 503
In this case it was held, violation of fundamental freedom and
human rights, which are guaranteed under the constitution
and its agencies, attracts invocation of Articles 21, 32 and
226. The defence of sovereign immunity being inapplicable,
and alien to the concept of guarantee of fundamental right,
there can be no question of such defence being available in the
constitutional remedy. It‘s this principle, which justifies
monetary compensation for contravention of fundamental
rights guaranteed by the constitution by recourse of Article 32
and 226 of the constitution.

(vii) Joginder Kumar vs State of U.P. and Others-1994

Cr.L.J. 1981(U.P.) / (1994) 4 SCC 260
The petitioner a young advocate of 28 years, was called by the
SSP Ghaziabad, UP ., Respondent 4, in his office for making
enquiries in some case. It was alleged that on 07/01/1994 at
about 10‘ o clock he personally along with his brothers
appeared before the SSP. At about 12.55 p.m. the brother of
the petitioner sent a telegram to the Chief Minister of U.P.
apprehending the petitioner ―false implication in some criminal
case and his death in fake encounter. In the evening, it came
to be known that the petitioner was detained in the illegal
custody of respondent 5. Next day the SHO instead of
producing the petitioner before Magistrate asked the relatives

111
to approach the SSP. On 09/01/1994 in the evening, relatives
of the petitioner came to know that the petitioner had been
taken to some undisclosed destination. Under these
circumstances the writ petition under Article 32 was preferred
for release of the petitioner. The Supreme Court on
11/11/994 ordered notice to the State of U.P. as well as SSP,
Ghaziabad. The SSP along with the petitioner appeared before
the Court on 14/01/1994 and stated that the petitioner was
not in detention at all and that his help was taken for detecting
some cases relating to abduction and the petitioner was
helpful in cooperating with the police. Therefore, there was no
question of detaining him.

The Supreme Court while directing the District Judge,

Ghaziabad, to make a detailed enquiry and submit his report
within four weeks observed as under:

The quality of a nation‘s civilization can be largely measured

by the methods it uses in the enforcement of criminal law.
The horizon of human rights is expanding. At the same time,
the crime rate is also increasing. The Court has been receiving
complaints about violation of human rights because of
indiscriminate arrests. A realistic approach should be made in
this direction. The law of arrest is one of balancing individual
rights, liberties and privileges, on the one hand, and individual
duties, obligations and responsibilities on the other, of
weighing and balancing the rights, liberties and privileges of
the single individual and those of individuals collectively; of
simply deciding what is wanted and where to put the weight

112
and the emphasis of deciding which comes first – the criminal
or society , the law violator or the law abider.

Guidelines for Arrest : No arrest can be made because it is

lawful for the police officer to do so. The existence of the
power to arrest is one thing. The justification for the exercise
of it is quite another. The police officer must be able to justify
the arrest apart from his power to do so. Arrest and detention
in police lock-up of a person cause incalculable harm to the
reputation and self –esteem of a person. No arrest can be
made in a routine manner on a mere allegation of commission
of an offence made against a person. It would be a prudent
for a police officer in the interest of protection of the
constitutional rights of a citizen and perhaps in his own
interest that no arrest should be made without a reasonable
satisfaction reached after some investigation as to the
genuineness and bonafides of a complaint and a reasonable
belief both as to the person‘s complicity and even so as o the
need to effect arrest. Denying a person of his liberty is a
serious matter. The recommendations 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 the suspicion of
complicity in an offence. There must be some reasonable
justification in the opinion of the officer effecting the arrest
that such arrest is necessary and justified. Except in heinous
offences, an arrest must be remanded if a police officer issues
notice to person to attend the Station House and not to leave
the station without permission would do.

113
The right of the arrested person to have someone informed,
upon request and to consult privately with a lawyer was
recognized by Section 56(1) of the Police and Criminal
Evidence Act, 1984 in England. These rights are inherent in
Articles 21 and 22(1) of the Constitution and require to be
recognized and scrupulously protected. For effective
enforcement of these fundamental rights, the following
requirements are issued.

1.An arrested person being held in custody is entitled, if he so

requests to have one friend, relative or other person who is
known to him or likely to take an interest in his welfare told
as far as is practicable that he has been arrested and where
he is being detained.

2.The Police officer shall inform the arrested person when he is

brought to the Police station of this right.

3.An entry shall be required to be made in the diary as to who

was informed of the arrest. These protections from power
must be held to flow from Articles 21 and 22(1) and enforced
strictly.

It shall be the duty of the Magistrate, before whom the

arrested person is produced, to satisfy himself that these
requirements have been complied with.

114
The above requirements shall be followed in all cases of arrest
till legal provisions are made in this behalf. These
requirements shall be in addition to the rights of the arrested
person found in the various police manuals. These
requirements are not exhaustive. The Directors General of
Police of all the States in India shall issue necessary
instructions requiring due observance of these requirements.
In addition, departmental instruction shall also be issued that
a police officer making an arrest should also record in the case
diary, the reasons for making the arrest. ( emphasis supplied).

(viii)State of M. P. V. Shyamsunder Trivedi and another,

1995 (3) CCR 36 (SC): 1995 (4) JT 445 (SC)
In this case, the accused police personnel tortured extensively
the victim and bit him in the police custody leading to his
death and created false clues and fabricated false evidence to
conceal the truth that victim Nathu Banjara had died in police
custody with the view to screen the offence. police created
false evidence that dead body was recovered from near a tank
and was described as ‗lawaris‘ (unclaimed). Both trial court
and High Court acquitted the accused policemen. But Supreme
Court reversed the order of acquittal in to conviction but a
very less punishment of 1-2yrs with fine ranging from 20,000-
50,000, was given, regardless of the gravity of offence.

(ix) Somari Devi V. State of Bihar and others, 1996 (2)

CCR 364
It was held in this case that the custodial death is a serious
breach of fundamental rights enshrined in Article 21 of the

115
constitution, for the deceased had been deprived of his life
without due process of law. Under such circumstances State is
directed to compensate the death by way of award of damages
though human life cannot be weighed in terms of money.

(x) DK Basu V. State of W. Bengal: 1996 (8) Supreme

592: 1997 (1) RCR (Cri) 373: AIR 1997 SC 610
Custodial death is perhaps one of the worst crimes in a
civilised 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 whisk
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 lawbreakers, it is bound to breed
contempt for law and would encourage lawlessness and every
man would have the tendency to become law unto him thereby
leading to anarchanism. No civilised 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". The precious
right guaranteed by Article 21 of the Constitution of India
cannot be denied to convicts, under trials, detenus and other
prisoners in custody, except according to the procedure
established by law by placing such reasonable restrictions as
are permitted by laws. 36. We, therefore, consider it

116
appropriate to issue the following requirements to be followed
in all cases of arrest or detention till legal provisions are made
in that behalf as preventive measures:
(1) The police personnel carrying out the arrest and handling
the interrogation of the arrestee should bear accurate, visible
and clear identification and name tags with their designations.
The particulars of all such police personnel who handle
interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the
arrestee shall prepare a memo of arrest at the time of arrest
and such memo shall be attested by at least one witness, who
may be either a member of the family of the arrestee or a
respectable person of the locality from where the arrest is
made. It shall also be countersigned by the arrestee and shall
contain the time and date of arrest.
(3) A person who has been arrested or detained and is being
held in custody in a police station or interrogation centre or
other lock-up, shall be entitled to have one friend or relative or
other person known to him or having interest in his welfare
being informed, as soon as practicable, that he has been
arrested and is being detained at the particular place, unless
the attesting witness of the memo of arrest is himself such a
friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an
arrestee must be notified by the police where the next friend
or relative of the arrestee lives outside the district or and
through the Legal Aid Organisation in the District and the
police station of the area concerned telegraphically within a
period of 8 to 12 hours after the arrest.

117
(5) The person arrested must be made aware of this right to
have someone informed of his arrest or detention as soon as
he is put under arrest or is detained.
(6) 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 the next friend of the person who has
been informed of the arrest and the names and particulars of
the police officials in whose custody the arrestee is.
(7) The arrestee should, where he so requests, be also
examined at the time of his arrest and major and minor
injuries, if any, present on his/her body, must be recorded at
that time. The "Inspection Memo" must be signed both by the
arrestee and the police officer affecting the arrest and its copy
provided to the arrestee.
(8) The arrestee should be subjected to medical examination
by a trained doctor every 48 hours during his detention in
custody by a doctor on the panel of approved doctors
appointed by Director, Health Services of the concerned State
or Union Territory, Director, Health Services should prepare
such a panel for all Tehsils and Districts as well.
(9) Copies of all the documents including the memo of arrest,
referred to above, should be sent to the Magistrate for his
record.
(10) The arrestee may be permitted to meet his lawyer during
interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district
and State headquarters, where information regarding the
arrest and the place of custody of the arrestee shall be
communicated by the officer causing the arrest, within 12

118
hours of effecting the arrest and at the police control room it
should be displayed on a conspicuous police board. Failure to
comply with the requirements hereinabove mentioned shall
apart from rendering the concerned official liable for
departmental action, also render him liable to be punished for
contempt of court and the proceedings for contempt of Court
may be instituted in any High Court of the country, having
territorial jurisdiction over the matter"

(xi) Thankappam V. U.O.I., 1997 (2) Crimes 474

In this the death of a young boy of 24 years old, in police
custody who was kept under surveillance in police station for
verifying the version given by him at police station. Held that,
a person has to be kept in police station if he had involved in a
criminal case and not to verify the non-involvement in a case.
Such custody is illegal.

(xii) State of Andhra Pradesh V. Challa Ramkrishna

Reddy, AIR 2000 SC 2083
In this case a claimant and his father were lodged in jail as
they apprehended the danger to their life, but police failed to
provide them safety and father died in the custody.
The Apex court in this case said, ―Right to life is one of the
basic human rights. It is guaranteed to every person by Art.
21 of the constitution and not even the State have the
authority to violate that right. A prisoner be he a convict or
under-trial or a detenu, does not cease to be a human being.
Even when lodged in the jail, he continues to enjoy all his

119
fundamental rights including the right to life guaranteed to him
under the constitution‖.

(xiii) Ajab Singh v. State of U.P.- AIR 2000

SUPREME COURT 3421 = 2000 AIR SCW 1120
In this case medical evidence stated that victim died of
jaundice and liver failure and that post mortem report listed
cause of death as shock and haemorrhage due to ante mortem
injuries was rather misleading. Supreme Court directed that
cause of victim's death should be investigated by Central
Bureau of Investigation.

The Court further said, ―They have attempted to pull the wool
over the eyes of this Court. We do not appreciate the death of
persons in judicial custody. When such deaths occur, it is not
only to the public at large that those holding custody are
responsible; they are responsible also to the Courts under
whose orders they hold such custody. It is appropriate,
therefore, that the cause of Rishipal's death should be
investigated by the Central Bureau of Investigation. The C.B.I.
shall register a case and conduct an investigation into the
circumstances of Rishipal's death. The C.B.I. shall forthwith
appoint an officer to receive from the respondents all records
relating to Rishipal and the respondents shall immediately
handover such records to such officer. The investigation shall
be completed expeditiously and a copy of the investigation
report shall be filed in this Court. The Registry shall forward a
copy of this judgment and order to the Director, C.B.I.‖

120
Further, court said, ―The State of Uttar Pradesh is responsible
in public law for the death of Rishipal and must pay
compensation to the petitioners for the same. [See D. K. Basu
v. State of West Bengal, (1997) 1 SCC 416 : (1997 AIR SCW
233 : AIR 1997 SC 610 : 1997 Cri LJ 743). We think that it is
appropriate, in the circumstances, to order the State of Uttar
Pradesh to pay to the petitioners compensation for the death
of Rishipal in the sum of Rupees five lakhs within three
months. The sum shall be invested by the petitioners and the
income thereof shall be so distributed that at least half is
utilised for the benefit of Rishipal's children during the period
of their minority.‖

(xiv) Shakila Abdul Gafar Vs. Vasant Raghunath-AIR

2003 SC 4567
A Bench, comprising Justice Doraiswamy Raju and Justice Arijit
Pasayat, made these observations while awarding Rs. 1 lakh to
a family, which lost its breadwinner due to torture in police
custody.

The judges said that life or personal liberty under the

Constitution included the right to live with human dignity.
"There is an inbuilt guarantee against torture or assault by the
state or its functionaries. It is, therefore, difficult to
comprehend how torture and custodial violence can be
permitted to defy the rights flowing from the Constitution".

"The dehumanising torture, assault and death in custody which

have assumed alarming proportions raise serious questions
about the credibility of the rule of law and administration of

121
the criminal justice system. The community rightly gets
disturbed. The cry for justice becomes louder and warrants
immediate remedial measures," it added. "The vulnerability of
human rights assumes a traumatic torture when functionaries
of the state, whose paramount duty is to protect the citizens
and not to commit gruesome offences against them, in reality
perpetrate them".

Finding fault with the present justice delivery system, the

Bench said the exaggerated adherence to and insistence upon
the establishment of proof beyond every reasonable doubt by
the prosecution, at times even when the prosecuting agencies
were themselves fixed in the dock, ignoring the ground
realities, often resulted in miscarriage of justice.

Only a very few cases of this type came to light, the Bench
said and added that the government and the legislature must
give serious thought to the recommendation of the Law
Commission and bring about appropriate changes in law not
only to curb custodial crime but also to see that such crime
"does not go unpunished".

Recalling the words of Abraham Lincoln, the Bench said: "if

you once forfeit the confidence of our fellow citizens you can
never regain there respect and esteem".

"Torture in police custody receives encouragement by this type

of an unrealistic approach at times of the courts as well
because it reinforces the belief in the mind of the police that
no harm would come to them once the prisoner dies in lock-up
because there would hardly be any evidence available to the

122
prosecution to directly implicate them with the torture." By
way of caution to the trial and High Courts, the Bench said:
"courts must deal with such cases in a realistic manner and
with the sensitivity which they deserve, otherwise, the
common man may tend to gradually lose faith in the efficacy
of the system of judiciary itself, which, if it happens, will be a
sad day for any one to reckon with".

In this case, though the death of Abdul Gafar Khan in Mumbai

in 1983 due to police torture could not be established, the
Bench directed the Maharashtra Government to pay Rs. 1 lakh
as compensation to the mother of the victim and his children.
It said, since the victim's wife had remarried, she was not
entitled for compensation.

(xv) State of Maharashtra v. C. C. W. Council of India-

AIR 2004 SUPREME COURT 7 = 2003 AIR SCW 5524

Some of the policemen on duty in the Crime Branch Office of

Nagpur City took into custody one Junious Adam Illamatti, a
resident of Ajni Railway Colony on 23-6-1993. While he was in
police custody, it is stated he was found dead. It is also
alleged that when his wife Jarina Adam went to the Police
Station to enquire about her husband, she was also locked up
by the said Police and molested. On 26-6-1993 a criminal case
being Crime No. 438 of 1993 was registered for offences under
Ss. 302, 342, 330, 354 read with S. 34 against 10 Police
Officers. The investigation in this regard was conducted by a
Deputy Superintendent of Police, State CID (Crimes) Mr.
Godbole. After investigation said Police Officers were charge-
sheeted for the offences mentioned hereinabove and in the

123
trial in S.C. No. 416 of 1993 before the Additional Sessions
Judge, Nagpur, said 10 Police Officers were acquitted of the
charge under S. 302, I.P.C. but were convicted for offences
punishable under S. 333 read with Ss. 34, 342 read with Ss.
34, 355 read with S. 34, and a punishment of 3 years' R.I.
with fine for the principal offence was awarded by said
Sessions Judge to the abovementioned 10 Police Officers.

In the instant case the High Court prevented the police from
arresting a lady without the presence of a lady constable. Said
direction also prohibited the arrest of a lady after sunset and
before sunrise under any circumstances. Supreme Court
though agreed with the object behind the direction issued by
the High Court found that a strict compliance of the said
direction, in a given circumstance, would cause practical
difficulties to the investigating agency and might even give
room for evading the process of law by unscrupulous accused.
While it is necessary to protect the female sought to be
arrested by the police from police misdeeds, it may not be
always possible and practical to have the presence of a lady
constable when the necessity for such arrest arises, therefore,
the Supreme Court modified the said direction without
disturbing the object behind the same. The object will be
served if a direction is issued to the Arresting Authority that
while arresting a female person, all efforts should be made to
keep a lady constable present but in circumstances where the
Arresting Officer is reasonably satisfied that such presence of a
lady constable is not available or possible and/or the delay in
arresting caused by securing the presence of a lady constable
would impede the course of investigation such Arresting Officer

124
for reasons to be recorded either before the arrest or
immediately after the arrest be permitted to arrest a female
person for lawful reasons at any time of the day or night
depending on the circumstances of the case even without the
presence of a lady constable.

Further, SC held, ―So far as the liability to pay compensation

to the aggrieved party who has suffered because of the Police
excesses there can be no doubt in view of the judgment of this
Court in Smt. Nilabati Behera alias Lalita Behera v. State of
Orissa and others (AIR 1993 SC 1960). The question whether
such compensation paid by the State can be recovered from
the Officers concerned will depend on the fact whether the
alleged misdeeds by the Officer concerned is committed in the
course of the discharge of his lawful duties, beyond or in
excess of the same which will have to be determined in a
proper enquiry.‖

(xvi) Munshi Singh Gautam and Ors. Vs. State of M.P. –

AIR 2005 SC 402

In this case, deceased, died as he was beaten by police

officials in order to extort confession. The evidence of the
witness who claimed to have seen accused, when police
brought deceased to police station was not reliable as he had
not seen them on the date of occurance. Thus, Test
Identification Parade was held to be of no consequence in view
of his evidence. Evidence of other witness who disclosed name
of deceased in offence and also claimed to be assaulted or
beaten by police was also full of unexplained contradictions.

125
The Court thus held that the evidence of said witnesses would
not be sufficient to fasten guilt on accused persons.

Further, deceased was alleged to have been taken to police

station and beaten as a result of which he died. Further, false
statement by one of the accused ―B‖ police official as to
occurance of death of deceased and plea by another accused
―G‖ that deceased came to police station in severe condition
and after telling his name collapsed was falsified by categorical
statement made by him U/S. 313, Cr PC. Accusations was
found established against ―G‖. However, no grevious injuries
were found on vital body parts of the deceased and duration of
injuries were widely variant. Right lung of deceased was TB
affected thus combined effect of alcohol consumed by him and
injuries shortened period of death and resulted in quicker
death. Therefore, conviction of accused u/s. 304, Part II, by
the High Court was held proper by the Supreme Court.

126
 CHAPTER-XI
Recommendations and suggestions

(i) Recommendations of specialized agencies and

commissions

As seen above, custodial violence is the most henious crime

which is prevelant in the present era. It is not only illegal and
unconstitutional but also inhuman and barbaric. It is against
the democratic system. As discussed in the earlier chapters, in
the recent past the incidents of custodial violence has been on
rising, this is partly due to the fact that such kind of incident
are actually taking place and partly that due to more reporting
of such kind of incidents due to the media exposure, and
greater awareness in the public of their rights.

Judicial approach towards custodial crimes is very harsh. The

Courts have treated custodial crime as a violation of ‗Right to
Life‘ as enshrined in Article 21 of the Constitution and it has
not only punished the offender but also granted compensation
to the victims. But even then if we go through the various
judgments of courts we will seldom find that court has given
them, the offenders of custodial crime, death sentence or life
imprisonment for such an inhuman crime, rather courts have
treated it as a culpable homicide not amounting to murder.
Considering that offenders had no such intention to commit
murder, which is basically a soft approach towards the
offenders of these crimes. Instead, of it, they should be given
more stringent punishment as they commit not only a crime

127
but also commit breach of the faith reposed in them by the
State, faith of giving them the responsibility of maintaining law
and order in the society and protecting the subjects of the
State.

In India various committees have been set up to look into the

problem of custodial violence, like National Human Rights
Commission (N. H. R. C.), National Police Commission (NPC)
etc. Besides, there are international agencies like Amnesty
International. The reports and recommendations of these
agencies, if put in practice, can work effectively in dealing with
custodial violence.

(a) National Police Commission suggested a series of

practical measures to check the use of third degree
methods

These include:

1. Surprise visits to police stations and similar units by

senior officers. This could help in the early detection of
persons held in unauthorised custody and subjected to ill
treatment. Any malpractices so noticed should be met
with swift and deterrent punishment.

2. A magistrate or Judge, before whom an arrested person

is produced by the police for remand to custody should
be required to question the arrested person specifically
as to whether he has any complaint of ill-treatment by

128
 police. If he has such a complaint, the magistrate or
judge should have him medically examined immediately,
so that further appropriate action can be taken.

3. Supervisory ranks should eschew an essential 'statistical'

approach in evaluating police performance.
Administrative reviews of a kind which encourage sub
ordinate ranks to adopt 'shortcut methods' to show
'result' should be avoided.

(b) Amnesty International, in its report in 2000 gave

some recommendations regarding safeguards to be
provided during arrest, detention and interrogation:

1. Police powers to arrest during investigation and without

warrant should be strictly limited. Police should be
required to clearly demonstrate in writing the need for
arresting an individual as a means of reducing the
number of unwarranted arrests at the instigation of
vested interests.

2. Records of all arrests should be kept in a general diary

including details of the officer arresting, the full name
and details of the arrestee, the time and place of arrest,
any witnesses and any other relevant details.

3. The authorities should keep under systematic review

interrogation rules, instructions, methods and practices

129
 with a view to preventing any cases of torture in line with
the convention against torture. Those involved in
interrogation should receive regular training on how to
implement such rules and regulations.

4. Lawyers should be present during interrogation of

suspects. Detainees should be given the opportunity to
contact their lawyer or seek the service of a lawyer
through legal aid prior to interrogation.

(c) Amnesty International also gave certain

recommendations for bringing about police reforms:-

1. Police reform should specifically address the problem of

human rights violations in custodial situations and
structural problems, which have been, identified as
facilitating torture and ill treatment and other human
rights violations. They should incorporate a code of
ethics for police officers.

2. Police reforms should ensure that police are able to

operate independently in the interests of the whole
community and are not, as they are now, open to
political and other influences that commonly leads to
abuses of the law including torture and ill treatment.

130
It also suggested some measures to ensure investigations into
cases of tortures:-

 The government should ensure prompt independent

investigations into all allegations of torture or ill
treatment (including rape and death in custody). Those
investigating the allegations should be fully independent
of the alleged perpetrators and have the necessary
power and expertise to open prompt criminal
investigation.

 Methods and findings of investigations should be made

public and the victim or his family must be allowed
access to complete records and be given the right to be
represented through legal counsel during the inquiry with
the help of legal aid.

 An amendment should be made to Section 114 of Indian

Evidence Act, as suggested by the Law Commission of
India, to introduce a rebuttable presumption that injuries
sustained by a person in police custody may be
presumed to have been caused by a police officer.

Both NHRC and Amnesty International are of the view that

right to compensation should be made an enforceable
statutory right for cases of torture and other forms of ill-
treatment and verification mechanisms to be put in place to
ensure that orders for compensation are implemented

131
promptly by the authorities and that they are paid directly to
the awardees.

132
 CHAPTER-XII
Suggestions

(i) Human Rights Awareness

One of the prime causes for the existence of custodial violence

is its acceptability by the society and tacit approval. People
should be made aware of the basic human rights concept and
appreciate the concepts of Rule of Law. They must realise that
the use of violence against fellow citizens accused of crime
without giving a reasonable opportunity to defend themselves
is against all canons of jurisprudence and has no place in
liberal democracy. A well organised massive campaign in the
Print and Electronic Media, films and theatre should be
launched to educate the public about human rights. Cases of
miscarriage of justice where innocent persons suffered due to
lack of reasonable opportunity should be highlighted. Attitude
of people in relation to 'police bashing' should be changed.
This would help in reducing custodial violence.

(ii) Limiting the scope of arrests

Everyday, thousands of people are arrested by the police for

violation of a plethora of legislations. This has been made
possible due to the fact that almost all legislations and made
their violations cognizable by the police enabling them to
arrest citizens without a warrant. A complete review of all
legislations empowering police to arrest without a warrant

133
should be undertaken by the Law Commission to reduce the
scope of arrest by police.

(iii) Better living and working conditions for police

Police personnel work under severe hardships with inadequate

pay, low social esteem, abominable living conditions, harsh
working environment and ever present risk of losing their
lives. These collectively dehumanise and brutalises police
personnel. With enormous power at their disposal, with hardly
any supervision at their exercise, a dissatisfied and disgruntled
policeman takes a dim view of the society with a vengeance.
Thus, there is a need to provide congenial conditions for living
and working for the policemen.

Supervisory officers should be the correct role models and

they should make clear that good ends cannot be achieved
through bad or illegal means.

(iv) Working paper on custodial crimes, prepared by the

Law Commission

As suggested in the excellent working paper on custodial

crimes, prepared by the Law Commission, whenever,
1. A person is arrested it should be imperative for the police
officer to inform any relation or friend about the arrest of
the arrested person.

134
 2. A person is arrested, and then at the time of arrest itself,
an opportunity should be available to the accused to
contact his counsel, so that prompt action can be taken.
3. It is the case of custodial death or torture, the
compensation should be granted by criminal court and
not by the civil court as in such cases human rights of an
arrested person are violated or custodial death takes
place.

(v) Other preventive measures

1. Since persons usually run a higher risk of being ill-

treated while they are detained, opening up and
accessing places of detention is of crucial importance in
order to reduce the risk of torture or ill-treatment in
custody.71
2. A handbook of Police Code of Conduct with particular
emphasis in the imperatives of total abjuration of
custodial abuse‘s merits to be made available to every
policemen irrespective of rank or position.
3. As a part of improved Police community understanding, it
would be worthwhile for the police leaders to venture
enabling periodical/surprise visits to police lock-ups by a
political citizen committees in at least all the urban and
semi-urban areas where such a scheme can be made
workable.

71
Dr. A.M. Singhavi, a paper presented in seminar; “Custodial Crime: An Affront to Human Dignity,
Human Right Year Book 2001, Ed by P.K. Parakh, Universal Law Publication Pvt. Ltd., New Delhi,
India.

135
(vi) Amendments to constitution

Two new clauses are to be added to Article 21 of the Indian

Constitution as suggested by the National Commission to
review the Constitution. The first clause to be added is ―No one
shall be subjected to torture or cruel, inhuman or degrading
treatment or punishment‖. The next clause, ―every person who
has been illegally deprived of the right to life or liberty shall
have an enforceable right to compensation‖.

(vii) Amendments to various statutes

1.Compulsory registration of FIR of all offences whether it is

cognizable or non-cognizable.
2. Section 176 of the CrPC, 1973 provides for a magisterial
enquiry in to the circumstances leading to an unnatural
death. But such an enquiry is conducted by an Executive
Magistrate. It is necessary that in case of all custodial
deaths must be amended to provide for a mandatory inquiry
by at least a Judicial Magistrate if not by a Sessions Judge.
3. Maximum time frame to commence, hold and finalise such
a judicial enquiry must be made explicit under the
appropriate law.
4. All proceedings under section 176 of Cr.P.C., 1973 must
be published in the official gazettes by the respective State
Governments soon after the receipt of report.
5. An amendment to section 302 IPC is necessary by adding
a sub-section, to make the penal consequences grave, non-

136
 bailable and cognizable offences punishable with not less
than 7 years imprisonment in case of custodial death.
6. Remove the protection provided under S. 197 Cr.P.C., and
under various police statutes, like S.147 of Delhi Police Act,
1940
7. Lack of any specific definition of term ―custody‖ results in
confusion and uncertainty. According to police only those
cases are to be treated as cases of custodial violence where
injury or death occurs in the custody when the person was
arrested formally. But there are a number of cases where
without arrest also police keeps persons for interrogation.
So, ―custody‖ must be defined to include these cases as
well, where police calls for or brings a person for
investigation, even though not in formal custody.
8. Further, ―death in police custody‖, ―death in prison‖,
―torture‖, ―disappearance‖, ―encounter deaths‖ etc. must
also be defined.
9. Under section 54 of Cr. P.C. the medical examination of
the accused must be made mandatory.
10. Section 195 Cr.P.C. and Section 140 of Delhi Police Act
must be amended to put sanctions on the erring police
officials, without which no court can take cognizance
against a public official, which not only delays the matter
but also in the most cases, matter is rushed by the
government.
11. Section 154 of Cr.P.C. on a plain reading gives only a
police officials power to lodge the FIRs, but virtually, entire
power of investigation is given in the hands of the police
and most of the time police officials use their power to

137
 save the guilty police officials and to suppress the voice of
the victims and their family members.
12. Section 57 of Cr.P.C. must be amended to make it
mandatory for the police officer making arrest without
warrant to send a copy of the arrests to the Legal Aid
Boards as suggested by Supreme Court in Sheela Barse‘s
Case.
13. Section 114 of Evidence Act needs to be amended to shift
burden of proof on the police in case of custodial violence,
torture and death.
In State of U.P. vs. Ram Sagar Yadav72, the Apex Court
said, ―Before we close, we would like to impress upon the
Government the need to amend the law appropriately so
that policemen who commit atrocities on persons who are
in their custody are not allowed to escape by reason of
paucity or absence of evidence. Police Officers alone, and
none else, can give evidence as regards the circumstances
in which a person in their custody comes to receive
injuries while in their custody. Bound by ties of a kind of
brotherhood, they often prefer to remain silent in such
situations and when they choose to speak, they put their
own gaols upon facts and pervert the truth. The result is
that persons, on whom atrocities are perpetrated by the
police in the sanctum sanctorum of the police station are
left without any evidence to prove who the offenders are.
The law as to the burden of proof in such cases may be re-
examined by the legislature so that hand-maids of law and
order do not use their authority and opportunities for

72
AIR 1985SC 416

138
 oppressing the innocent citizens who look to them for
protection.‖
14. Section 330 and 331 of IPC must be amended on the
similar lines of Turkish Penal Code by increasing the
penalty for torture and ill-treatment. The sentence for
torture or cruel, inhuman, degrading treatment of upto 8
years and holding of public office and sentence of upto 5
years imprisonment and temporary disqualification from
holding public office for ill treatment or physical harm. A
sentence from 4-8 years for health personnel who conceal
torture by issuing false reports.

(viii)Amendments to administrative measures

1. The cases of custodial death must be enquired judicially

and the legal representatives of the victim must have the
full opportunity to get a copy of the inquiry report, free of
cost from the office of the concerned District Magistrate.
2. All cases of custodial deaths must be investigated by an
officer of rank not less than that of a Deputy
Superintendent of Police.
3. Payment of compensation to. the relatives of the
deceased who suffer a custodial death out of the police
funds as is being done in U.K. Recovery of payment so
made must be recovered from the erring official and
stringent action must be taken against perpetrators of
such custodial crimes.
4. A rebuttable presumption in cases of custodial violence
should be enacted in the Indian Evidence Act to the

139
 effect that every death or violence in custody must be
presumed to be a result of custodial torture.
5. Post mortem in such cases provides the most important
evidence. Hence it must invariably be done by a team of
Doctors of not less than two and not more then three.
Finding of each Doctor must be independently recorded
and it should not be a joint report. In case of difference
as to the final findings, the senior most Doctor of the
district/city must record his findings. Post mortem, in all
such cases must be done within 24 hours of the report of
the incident, and in event of non-compliance. The reason
must be recorded in writing. Further, post mortem must
be video graphed.
6. The Law Commission of India- has reported that large
percentage of arrest ranging between 80-90 percent in
most cases are in respect of bailable offences. The
following amendments has been suggested In this
respect: -
i. In respect of bailable and non-cognizable offence's no
arrest should be made by police and no arrest
warrant should be issued by court but only. summons
to be issued and served otherwise than through a
police constable.
ii. In respect of bailable and cognizable. There should be
no arrest, only on appearance notice (like In
Australia and New' Zealand) should be served on the
accused to present himself before the police or court.
iii. In respect of offences, which are non-bailable and
cognizable, a distinction should be made between

140
 offences punishable with imprisonment of move than
seven years and ones upto 7 years. Excluding a few
(e.g. against women and minors) all offences which
provides less than seven years imprisonment
should be bailable.
7. A strong penal action must be taken against erring
official found guilty of any legal or administrative
violence or failures.
8. The close circuit camera should be placed in the lock-up
& interrogation room & there should be videography of
interrogation of accuse.
9. Station in-charge of the police station must be held
responsible for every death or injury caused to any
person in custody & penal as well as departmental
action should be taken against him & he should be
removed from police station immediately for impartial
inquiry.
10. A separate police force should be made, whose main
function would be to investigate the case and they
should be kept free from normal law and order duty.
11. Proper training is the keystone of bringing up a
humanized police. Intensive education and training
should be at all levels. Police at all level specially at the
grass root level, i.e. I constable and head constable
level should be made aware of the human rights, and its
violation at the national levels and international level.
The object of training should be:
i. To make the officer realize the significance of his job;

141
 ii. To import desirable attitude so that socialization in
the organisation is achieved without alienation of the
interest of the citizen i.e. of harmonization of the
Individual & social needs.
iii. To teach necessary skill (technical, human and
conceptual) required to perform the job.
iv. To include behaviour as a response to a situation;
v. To prepare the police to leave to live under tension
and pressure.
vi. To use force with restraint.
12. There should be more use of modern techniques of
investigation and to do away with the third degree
method of investigation. Reliance should be more on
proving the guilt through scientific investigation rather
then through extracting confession.. There should be
supply of lie detectors recording of evidence by audio
visual method, trained technicians and experts like
chartered accountant, lawyers, etc should be used
during investigation.
13. Non-Governmental organization should be encouraged
and all kinds of assistance should be granted to them in
curbing the violation of fundamental rights. There NGOs
take up such cases give the victim assistance and also
take up their cause to the court.

142
 CHAPTER-XIII
Conclusion

Though the subject matter of this topic is of less

spherical for the sake of educational studies but it penetrated
and pierced into my heart as the theme involves human right
and infringement of article 21 of the constitution of India when
such incidents take place in the hands of our protectors whose
duty is to protect the citizens of the country for which they had
been employed by the State.

In order to abide by the law of the land and to work in

harmony with the constitution it is essential to bring about
awareness among the general public about at least their basic
rights. It is very important first of all that the public should
know about their fundamental rights and secondly they should
know how they could restore these rights if they are deprived
of these rights. People should be motivated to move the courts
if they are being deprived of their fundamental rights, rather
than sitting at home and brooding over it.

Another requirement is that the police officials should be

trained in such a manner so that they could minimise the use
of third degree, which will lead to reduction in custodial
violence and hence custodial deaths. Strict actions should be
taken against those police officials who indulge in such
brutalities in the garb of the uniform.

143
 The need of the hour is undoubtedly to train and re-
orient police officers in this respect. The Court has frequently
made reference to this fact. Interestingly enough, there has
also been reference to the fact that it is crucial that training be
given in this respect not only to police officers but to members
of the lower judiciary as well who deal with these issues on a
day-to-day basis.

Law should prevent midnight arrests in the absence of

exceptional circumstances, which should be clearly defined.
The reason being in the dead of the night, no independent
witnesses are available to witness the illegalities committed by
the Police and also such midnight calls cause terror in the
victims and his family members.

Police often indulges in favouritism. Sometimes by

becoming anti-poor and pro-rich, sometimes by not taking
F.I.R. when an offence is committed by a police officer or a
person favourite to police officer. Not recording first
information report without a reason should be regarded, as a
serious breach of duty and the concerned police officer should
be liable to penal action and they should be adequately
punished and the punishments should be given wide publicity.

The person remanded or taken under custody must be

allowed to be interrogated in the presence of his counsel.

Police officers generally do not take complaints of wrongs

done by other police officers, due to what Hon'ble Supreme
Court called is "Ties of brother-hood ". No FIR at the instance
of the victim or his kith and kin is generally entertained and

144
higher police officer hardly listen to such allegations and
information for such act or information is a black spot on police
uniform besides higher official thinks it is a malafide allegation
against the integrity of police force. Under the circumstances
it will be a difficult task to secure evidence against the
policemen responsible for resorting third degree methods or
policeman on whose interrogation the victim (arrestee) died
besides they are in charge of police station reports which is not
difficult for them to manipulate. For such problems the higher
police officials should let know the police officers subordinate
to them that those of them who earn the respect and
confidence of the people are likely to be promoted and those
who incur public hostility are likely to miss promotional
chances.

In a recent decision (In re M. P. Diwedi, [(1996) 4 SCC),

the Supreme Court took serious view of a Magistrate not
taking action for removal of handcuffs of under-trial prisoners
brought before him. The Court noted the complete insensitivity
of the Magistrate to this serious violation of human rights of
under-trial prisoners and recorded strong disapproval of his
conduct and directed that this disapproval of the court be
placed in the personal file of the Magistrate.

Unless the directions and requirements lay down by apex

courts trickle down to the lowest levels of judiciary and
enforcement authorities, the protection of the human rights of
citizens will remain a dead letter of law. As far as India is
concerned, it is imperative that the Central and State
Governments, National Human Rights Commissions, the

145
Judiciary, Media and the Non-Governmental Organizations
should make a sincere and concerted effort to create mass
awareness of basic human rights. Awareness is thus the key to
this whole issue. Creation of that awareness together with
provision of the necessary support for a victim to go before the
courts and highlight the wrongs done to him or her remains a
priority.

Bestowing of number of fundamental right is not enough

it is essential that these rights should be available to all
subjects equal and in case of their violation there should be a
well-organized legal system to punish the wrongdoer. Police
play a vital role in ensuring the enjoyment of legal rights by all
sections of people. It is sorry to mention that sometime right
protector himself becomes the violator, torture, custodial
death, and custodial rape.

‗Hominum Cause Omnijus Constitutum‘ i.e. Law is made for

the man, hence the law, either in uniform or in plain clothes or
employed or unemployed, accused or suspect or non suspect,
binds every individual. Its internationally accepted view that
even if a person is an accused of a crime, he doesn‘t cease to
be a person and all rights to which he is entitled as a person
also rest with him except that restrictions put on him by the
law of the land which is per legem terrae (due process by law
or procedure by law). In other words, universally accepted
criminal rule is that even a criminal has his right irrespective of
his being a criminal. While there is evidence in our law the
protection of suspect or an accused while he is in the custody
or control of authority that arrest him.

146
The near absence of any furore over custodial deaths in India
can be partly explained by the way society sees its
incarcerated criminals. For a country in which the conviction
rate is abysmally low, custodial deaths are largely seen, at
best, as a non-issue, and, at worst, as an extra-judicial
‗balancing‘ act. But apart from the fact that the law of the land
is worthless if custodial ‗justice‘ is meted out ever so often, it
is also scandalous that there is no real system in place to
check this brutal practice.

India signed the Convention Against Torture but refused to

ratify it — the excuse being that there are laws in place, which
deal with the problem. The truth, however, is that there is no
procedure for holding an independent inquiry into a custodial
death. Instead, there‘s the Kafkaesque situation in which
magistrates order police to investigate one other. The maturity
of a society is not only measured according to how it treats its
law-abiding citizens, but also by its treatment of its suspected
and sentenced criminals. If the NHRC figures tell a story it is
this: to be imprisoned in India can by itself amount to a death
sentence.

147
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6. Protection of Human Right Act., 1993.

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148
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20. Ratanlal Dhirajlal: The Indian Penal Code 2002 Nagpur,
Company, India.
21. Ratanlal Dhirajlal: The Code of Criminal Procedure, 2004,
Wadhwas Company, Nagpur, India.
22. James Vadackumchary: Human Rights and Police in
India, APH Publishing Corporation, Delhi 1996.
23. Jawhar L. Kaur (Edited): Human Rights Issue and
Perspective, Regency Publication, New Delhi (1995).
24. K.M. Mathur Policing in India, Problem and Perspective,
Gyan Publishing House, Delhi, 1991.
25. M. P. Jain: Indian Constitutional Law 2003, Wadhwa
and Company, Nagpur. Kuntilya Arithoshostra
26. M.G. Chitkara: Human Rights Commitment and Betrayal,
APB Publishing Corporation, Darya Ganj, New Delhi,
1996.
27. M.J. Antony: Annual Digest of Human Rights, Judgement
2003

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28. N. Sarajaoba Human Right Principles and Practices an
Abuses (1994).
29. N. Sarajaoba (Ed.): Human Rights Principal, Practices
and Abuses , Osman Publication, New Delhi 1991.
30. P.S. Bawa : Policing for People. :Rupa and company,
Darya Ganj, Delhi (1989).
31. P.K. Parekhi (Ed.): Human Right Year Book 2001,
Universal Law Publishing Co. Pvt. Ltd, New Delhi (India).
32. P.C. Dixit (Ed.): Police and Community :Trishul
Publications, Noida (1993).
33. P.M. Bakshi: Constitution of India
34. R.A. Nelson: Nelson‘s IPC:Lexis Nexis Butterworths
Publications
35. Renu Ghosh, Vikram Samhita (Ed.): Branded Police,
Press and People: Bridge New Delhi, India.
36. Shankar Sarolia : Indian Police Issues and Perspectives,
Gaurav Publication, Delhi (198?).
37. Shankar Sen : Indian Police _Today, Ashish Publishing
House, New Delhi. (1996).
38. Shailender Mishra : Police Brutality: An Analysis of Police
Behaviour , Vikas Publishing House Pvt. Ltd. (1986).
39. S.C. Mishra : Police Administration in India (1970).
40. Dr. S. Subramaniam: Human Rights, International
Challenges, 2004 : Manas Publication, New Delhi, India
41. Dr. S.K. Kapoor : International Law and Human Rights,
(2002) : Central Law Agency Allahabad.
42. S.K. Ghosh : Torture and Rape in Police Custody (1993):
Ashish Publication House Pvt. Ltd.
43. Thommas Hobbes: Leviathan

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 44. T.S. Batra : Human Right, A critic
45. U. Baxi : The crisis of Indian Legal System (1982): Vikas
Publishing House Pvt. Ltd.
46. V.N. Shukla : Constitution of India (2001), Eastern Book
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47. Vijay K. Gupta: Perspective on Human Rights
48. Woodroff: Cr.P.C.: Lexis Nexis Butterworths Publications.

D. ARTICLES

1. Tanzeem Fatima : Police Attrocities vis a vis custodial

violation in Indian Perspective in Indian Police Journal (July
– Sept. 2003)

E. REPORTS AND COMMISSIONS

1. Amnesty International Reports

2. Crimes in India, year 1997 to 2002, National Crime
Record Bureau, Ministry of Home Affairs.
3. Indian Police Journal, July-Sept. 2003, Bureau of
Police Research and Development, Ministry of Home
Affairs.
4. National Police Commission, Report 1979-81.
5. National Human Rights Commission Report
6. J&K State Human Right Commission
7. UN Commission on Human Rights Report
8. Report of Padmanabhian Committee
9. U. N. special reporter on torture
10.National Police Commission
11.113th Report of Law Commission

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F. JOURNAL

1. All India Reporter

2. Apex Decisions
3. Criminal Law Journal
4. Delhi Law Times
5. Judgment Today
6. Supreme Court Cases
7. Current Criminal Reports
8. Recent Criminal Reports
9. Supreme Court Report

G. NEWSPAPERS

1. Indian Express
2. The Asian Age
3. The Hindustan Times
4. The Times of India
5. The Sunday times, plus section (newspaper dated
7th March 1999)
6. The Hindu

H. INTERNET WEBSITES

1. www.indianlegaleagle.com
2. www.humanrightslegalinstruments.com
3. www.socialjusticelibrary.com
4. www.vakilno1.com
5. www.thesundaytimesplus.com
6. www.thehindu.com (news clipping of 23rd October 2004)

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7. www.politinfo.com
8. www.nhrc.nic.in

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