Custodial Death and Inquiry by Judicial Magistrate

 

 

LAW OF CRIMES –  3 CODE OF CRIMINAL PROCEDURE, 1973

USTODIAL D EATH EATH AND I NQUIRY NQUIRY BY J UDICIAL UDICIAL C USTODIAL AGISTRATE   M AGISTRATE 

-SAARAMSH M. S. 1378 BA.LLB (HONS.)

 

ACKNOWLEDGMENT  

I would like to take this opportunity to express my gratitude and regards to my professor of criminal law, Dr. Asif E. for his constant mentoring and guidance gu idance throughout the project. I would also like to express my gratitude to National Nat ional University University of Advanced Legal Lega l Studies, Kochi for the valuable information and opportunity to execute this project. I would further like to thank my friends & family for their everlasting support and encouragement, without which this assignment would be arduous to implement. Lastly, I would also like to thank James Howlett who taught me that controlling my temperament would help me channel my abilities productively.

 

  CONTENTS  ACKNOWLEDGMENT ....................................................................................................................2 CUSTODIAL DEATH AND I NQUIR  NQUIRY Y BY JUDICIAL MAGISTRATE ........................................................4 1.

I NTRO  NTRODUCT DUCTION ION ..................................................................................................................4

2.

JUDICIAL ACTION IN POLICE CUSTODIAL DEATH ..................................................................6

3.

CUSTODIAL JURISPRUDENCE ..............................................................................................8

4.

CONCLUSION ................................................................................................................... 10

 

CUSTODIAL DEATH AND INQUIRY BY JUDICIAL MAGISTRATE  -Saaramsh.M.S1  Abstract

This short article shall introduce the unfortunate and gruesome reality of custodial death and torture which is prevalent in India. It shall further discuss the judicial action that has to be taken in such cases of custodial atrocities. It shall bring out the 2005 amendment of Section 176 to change the investigating authority from Executive Magistrate to a Judicial Magistrate. The article will then discuss the concept of “Custodial Jurisprudence” as laid down by the Hon’ble  Apex Court in the case of D.K. Basu v. State of West Bengal. The article will conclude with an analysis of all headings as included in the same.  

1.  INTRODUCTION 

Article 5 of the Universal Declaration of Human Rights, dated December 10, 1948 proclaims that "No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment". Subsequently, the International Covenant on Civil and Political Rights, 1966 created a treatyobligation under Article 7 for the states parties to it that "No one shall be subjected to torture tortu re or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific scientific experimentation". One needs to examine as to how far India which voted for the Universal Declaration in the General Ge neral Assembly of the United Nations, and is a party to the International Covenant of 1966 have observed these in practice. For, hardly a day passes without the news of police atrocities, torture and brutality being reported. Increasing frequency of custodial atrocities and its reportings in the media expose police to severe criticism. Nothing blemishes the image of police more than the  brutality directed against persons in their custody and, no doubt, whenever a hapless victim in  police custody is tortured or killed, human dignity is affronted. affronted.

1

 Student of the 5th Semester BA.LLB (Hons.) program at the National University of Advanced Legal Studies, Kochi.

 

India's status of human rights is fairly high under its Constitution which makes provision for fundamental rights and empowers the Supreme Court of o f India and the High Courts to enforce these rights and guide the authorities of the State Stat e to respect people's rights. Equally important is the fact that India has been a signatory to the international conventions on econo economic, mic, social, cultural, civil and political rights, with certain conditions. Part IV of the Constitution directs the state to apply  policies and principles in the governance of the country so as to enhance the prospects of social/economic justice. Article 43 directs the state to secure for workers a living wage, decent standard of life and social and cultural c ultural opportunities. In short, the universe of human rights r ights in India is still on an expanding horizon. The laws providing safeguards against aga inst excesses are substantial. The Constitution protects the right to life and personal liberty (Article 21) and other fundamental rights. Although the prohibition of torture in specific terms lacks constitutional authority, the courts have held that Article 21 implies  protection against torture and that sections 330 and 331 of the Indian Penal Code (IPC) as well as section 29 of the Indian Police Act specifically forbid the practice. Stringent punishment is  prescribed under section 376 of the IPC for rape in police custody or by the armed forces. In case of death in custody, an inquiry by a Magistrate is mandatory under section 176 of the Criminal Procedure Code (CRPC). The right to enforce the human rights provided in the Constitution is protected through enabling provisions. Article 226 empowers the High Courts to issue writs for the enforcement of such rights, including habeas corpus. Article 32 of the Constitution grants the same powers to the Supreme Court. Co urt. Critics point out that the protection of these rights on paper is excellent, but at the implementation level there are many shortcomings. However, some rulings of the higher courts have been able to set things right. Un- der various  provisions of the Terrorist Terrorist and Disruptive Disrupt ive Activities Activities (Prevention) Act (TADA), National Security Act (NSA), Disturbed Areas Act, etc. several brutal acts are alleged to have been committed on innocent citizens, either by individuals or the t he police or the military.2 

2

 N. S. Gehlot, The Indian Journal of Political Science, Vol. 55, No. 4 (October - December 1994),pp. 381-390

 

2.  JUDICIAL ACTION IN POLICE CUSTODIAL DEATH 

Since all are equal in the eye of law, everyone is liable to punishment without any distinction of rank, caste and creed.3 Similarly, policemen are also responsible for any offence, o ffence, committed during the course of duty. Consequently administrative and judicial actions are taken against police in cases of custodial death and if found guilty, they are punished like ordinary persons. Till the amendment in the section 176 of CrPC the inquest or inquiry into the cause of death in case of death in police custody or in any other custody authorised by the magistrate or the court was held  by the executive magistrates. As we all know that in our system the executive magistrate (Collector, ADM, SDM, Tahsildar, etc.) & the police are working together for the enforcement of of law and order all over the country. It follows, naturally, that when you have to work together for  prolonged periods of time, a b bond ond can be presumed presumed to have have developed resulting in in a soft soft corner for for the police officials involved in the incident, in the eyes of the executive magistrate. This can in turn affect the inquiry into the occurrence o ccurrence of custodial death or torture. Another reason is that the Executive Magistrate holds various responsibilities apart from the judicial responsibilities such as with regard to revenue and administration which sometimes resulted in a delay into the inquiry  procedure by months and a nd at times which extended to years beyond the t he tenure of a single person holding the post. Section 176 of o f the CrPC was amended in 2005 to bring in tthe he change that instead of an Executive Magistrate holding the inquiry, a Judicial Jud icial Magistrate would be responsible for the same. This amendment brought in a flurry of positive breakthroughs in inquiry process. A few are: a)  Body of the victim is to be forwarded to the nearest civil surgeon or other qualified medical professional appointed for this purpose by the State Government for the postmortem examination within 24 hours of the death of a person.  b)  Judicial Magistrate is required to conduct the inquiry within a short time limit. Thus, Judicial Magistrate can summon the examining doctor, victim’s relative and other related personnel in order to record their statements. This leads to a speedy inquiry  process and ensures that there be a systematic procedure and working of the t he judiciary to mete out apt justice justice for the t he victim if necessary.

3  See,

art. 14, Constitution of India, dealing with equality before the law. Also see, s. 2, Indian Penal Code 1860, dealing with application of the Code

 

c)  Since the body has to be examined by a forensic expert within 24 hours of death, there is no room for tampering of evidence of any sort and also promotes a speedy and comprehensive autopsy report to be made hassle-free. d)  The possibility of the executive magistrate being lenient and partial towards the accused officers and therefore preparing a biased inquiry report is eliminated by a  judicial inquiry. Section 176 (i) 4  of the Criminal Procedure Code, 1973 specifically creates liability of the magistrate to enquire into cases of police custodial death in order to find out o ut the cause of death so that any guilty persons can be punished. Recently an enquiry was set up in a case of custodial custod ial death and the team of Gokulpuri Police Station (Delhi) was suspended on its findings. The accused had  been nabbed from from Purkazi, Muzaffarnagar (U.P.) (U.P.) in connection with an abduction case. case. He expired expired due to torture in police custody and his body was thrown by the police into the Hindon River. In another case, a 22 year old young man, expired in police custody at Patel Nagar Police Station in Delhi. An enquiry was ordered to investigate the case and two constables of the station were suspended. The accused was picked up by the police from his house on suspicion of an involvement in theft. Similarly the Supreme Court Co urt also takes a strict view as regards ca cases ses of police custodial death. In the recent case of Dalip Singh v. State of Haryana Haryana,5 it held two constables along with the Sub-Inspector of Kurukshethra District (Haryana), guilty of causing death of the accused  by beating and convicted co nvicted them under Section 304(h) 6 of the Indian Penal Code 1860. Further, in another case of custodial death, the court not only directed the Home Secretary of Punjab to suspend the guilty sub-inspector for causing it but also ordered the CBI to conduct an enquiry. One innocent person, Sabarjeet, was picked up by the police, detained for several days and finally gunned down near the Indo-Pak Border. It was found later that the deceased had nothing to do with terrorist activities. It shows that policemen found guilty of custodial death are frequently unpunished by administrative and judicial actions. This, however, of the justice that the criminal should not go unpunished about relief to the deceased's family is not usually taken such actions.

4

 Substituted by Act no. 46 of 1983, dealing with duty of the magistrate to enquire into cause of police custodial death. Also see, S. 7, Police Act 1861, dealing with power of th thee Inspector General (I.G.), Deputy Inspector General (D.I.G.), Additional Deputy General (A.D.G.), and District Superintendent to suspend subordinate policemen guilty of any offence. 5 AIR 1993 SC 2302 6  Dealing with the punishment of causing death by negligence

 

Consequently one has to move separately of compensation co mpensation in cases of custodial death either to the Civil Court, High Court or Supreme Court respectively. 3.  CUSTODIAL JURISPRUDENCE 

The Supreme Court initiated the development of "Custodial Jurisprudence" in  D.K.Basu v. State of West Bengal.7  The case came up before the Court through a writ petition petition under Article Art icle 32 of the

Constitution by an NGO. In this case the Chief Justice of India's notice was drawn to a news  published in The Telegraph regarding deaths in police lock-ups and in jail in the State of West Bengal. It was requested in this petition to examine in depth and to develop custodial  jurisprudence. In this cas casee the Court outlined outlined the following requirements which should should be followed in all cases of arrest or detention as preventive measures: 1.  The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear c lear identification and name tags with their designation the  police personnel carrying out o ut the arrest and handling the interrogation of o f the arrestee should  bear accurate, visible and clear identification 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.  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 o r detained and is being held in custody in a police po lice station or interrogation center 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 b being eing informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the arresting witness of the memo of the arrest is himself such a friend or 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 town through the

7

 AIR 1997 SC 3017  3017 

 

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. 5.  The person arrested must be made aware of his right to have one 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 arrestee and the name and p particulars articulars of the police officials in whose custody the t he arrestee is. 7.  The arrestee should, where he so requests, be also examined at the time t ime 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 effecting 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 co ncerned State or Union Territory. Director, Health Services should prepare such a panel for all Tehsils and Districts as well 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, interrogation, though not throughout througho ut the interrogation. 11. A police control room should be provided to all district and State Headquarters, where information regarding the arrest and place off o ff custody of the arrestee shall be communicated  by the officer causing the arrest. Within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous board. The Court observed that the requirements, referred to above flow from Articles 21 and 22(1) of the Constitution and need to be strictly followed. In  Nilabati Behera v. State of Orissa,8  the Court observed that prisoners and detainees are not denuded of their fundamental rights under Article 21 and that it IS only such restrictions as are permitted by law, which can ca n be imposed on the enjoyment of the fundamental rights of the arrestees and detainees. d etainees. It was further observed "... there is a great responsibility on the police or prison authorities to ensure that the citizen in its custody is not

8

 (1993) 2 SCC 746  746 

 

deprived of his right to life. His liberty is in the very nature of things circumscribed by the fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is strict and admits of no exceptions. The wrongdoer is accountable and the State is responsible if the person in custody of the police is deprived of his life except according to procedure established by law..." In this case Court awarded a sum of Rs.

1.5 lakhs to the mother as her son had died in police custody. The Court's judgment also referred to Article 9(5) of the International Covenant on Civil and Political Rights, which indicates that an enforceable right to compensation is not alien to the concept of enforcement of o f a guaranteed right. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. 4.  CONCLUSION 

India has faced a lot of issues with regard to state action, particularly in the realm of the police forces. Corruption, maladministration and various cases of mistreatment of prisoners and their exposure to third-degree treatment have tainted the name of the State. There have been numerous cases in the country discussed before the Hon’ble Supreme Court of India where there have been guidelines and precedents laid out with regard to the fundamental rights of prisoners and how they hold equal importance as does any other citizen’s. Apart from the Const itutional safeguards, the Code of Criminal Procedure, 1973, also provides for a judicial inquiry by a Magistrate into cases of custodial torture by the police authority. The guidelines gu idelines for the same were laid out expansively  by the Hon’ble Apex Court in D.K. Basu’s case. Despite all these safeguards –  both  both statutory and constitutional, Indian prisoners continue to suffer at the hands of the police, under custody. India needs to review and further strengthen the powers given to the judiciary to tackle this issue and adequately curb the menace to be in consonance with most countries which have stringent laws against the same.