Author: Suhasini Kapoor Co-Author: Riddhima Singh ( Banasthali Vidhyapith)
The infamous felony of custodial death
The heinous crime of custodial death, which still persists in our said to be –“civilized society”, is committed when a person who is detained by the police under trial or is convicted for an offense dies during his stay in the span of custody. It could in the case when the person is under the custody of the police, the magistrate or the defence or paramilitary forces. Scenario of custodial death in India As per the examination of the current situation of our nation approximately 5 people die every day in police custody and that this data amounts to almost 1700 custodial death in a year. The states that lead in the cases of custodial deaths are majorly Uttar Pradesh and Tamil Nadu. Other Indian states like Madhya Pradesh, Gujarat, Jharkhand, Chhattisgarh, Maharashtra, Rajasthan, Andhra Pradesh, Haryana, Kerala, Karnataka, Jammu and Kashmir, Uttarakhand, West Bengal, Manipur, Assam, Himachal Pradesh, Telangana, Delhi, Orissa and Tripura are also said to have reported large number of custodial death cases. The nature of torture here includes applying roller onto the legs, beating after hanging upside down, kicking the abdomen, be it of a pregnant lady, giving electric shocks, pouring petrol on to the victim’s body, forcing the him/her to perform oral sex, inserting iron rods including in the annal region, piercing the body and hammering it with nails, sexually assaulting the victim regardless of their gender. These are a few ways but do not limit to the above stated. This inhuman behaviour of the policemen of torturing the detained to such an extent that leads to the demise of the victim, shows the dark reality of the institution that we are made to believe is for the benefit of our society, which clearly does not seem to apply to the case. Lack of adequate framework for adjudicating matters of custodial death As of the year 2010 before the US President, Barack Obama visited to India, The Prevention of Torture Bill ,2010 was passed by the Lok Sabha and was thereby considered India’s first step towards UNCAT ratification. [ United Nations Convention Against Torture and other cruel inhuman or degrading treatment or punishment]. In 2017, when 3rd the Universal Periodic Review was presented by India to the United Nations Human Rights Council, there was no anti torture bill that was stated. As per the situation concerned with the legal aspect of custodial deaths in India, there is no such Anti Torture Bill passed yet, and that there are only amendments and changes that are frequently done with the respect to recommendations and guidelines issued, upon custodial death cases, by the Law Commission. The bill was introduced in the Rajya Sabha 2017, and re-introduced in the year 2018, despite which it has not been given affect to yet and that there is still no concrete law up on the matter. Provisions that protect us and bar custodial death The Criminal Procedure Code provides,1973 as protection against custodial death under Section 49 which talks about no unnecessary restraint must be imposed on the detained , Section 57 which states that any person cannot be arrested by the police without a warrant for long periods unless reasonable and if not complied with has to be produced before the Magistrate under Section 57(A) of the same, Section 163 Where no police officer can offer any type of inducement and Section 164(4) of CrPC which states that any confession which is made by the accused in recording as per Section 281 of the code , must also be signed by the accused . Section 166 of Indian Penal Code, 1860, states that if any public servant disobeys any rule of law will be punished with fine or imprisonment extended to one year or both. Section 167 of the code provides punishment to public servant for framing of incorrect documents. Section 220 talks about punishment of Wrongful confinement by the authorities, having knowledge of the same. Section 330 of IPC talks about causing any sort of hurt for extorting any confession by the accused. Section 340-348 of the code deals with wrongful restraint and wrongful confinement and its punishment. Section 376 (2) deals with punishment for Rape committed by public servant. Sexual offences in custody are looked out under Section 376 B-and 376 D. The constitutional provisions of Article 14, 20, and 21 deal with the protection of people against custodial death. Article 14 majorly talks about the Right to Equality before law, while Article 20 particularly talks about the rights of prisoners by restricting the retrospective nature of the penal legislations, the right against double jeopardy and self-incrimination , whereas Article 21 advocates the Right to Life and personal liberty at large. Other such Acts which provide protection in such cases are The Indian Evidence Act 1872, The Indian Police act 1861, The Armed Forces Special Powers Act 1958, Human Rights Act, 1993. The situation proves to have remained unmoved since independence. It is evident that the situation regarding custodial death cases has not improved in a country, even after 73 years of independence. There cannot be seen any growth either in the law or in the practice in such respect. It is highly saddening that on one side where a nation promises the Right to life and Personal Liberty to every individual, the cases of custodial death are ever rising, which clearly show the hypocrisy of the government and judiciary at large in ensuring that the citizens’ rights are not violated but respected and protected. It can be seen that if not all government authority's engage in the act of causing custodial deaths, it can be said that not reporting the crime or taking measures to stop or being ignorant to it is also an equal contribution towards the causing of the offence . Having analysed the current situation it can be said with a lot of emphasis that the currently most talked about case of Bennix and Jayraj is not the only of its kind. Custodial deaths have been prominently observed within this nation from long standing times. Recently, a father and his son were brutally beaten by the police for opening their shop late after the hours so permitted due to curfew or lockdown. They belonged to the Thoothukudi district of Tamil Nadu. The police is said to have had a conflict with the father, Jayaraj who upon which was taken into custody following which his son Bennix was also beaten taken to custody for supporting his father. They brutally hit, the police sent their blood-stained clothes home on purpose again and again. The policemen did not even allow them to exercise their legal right of meeting a lawyer upon their arrest. They were tortured brutally where rods were penetrated their anal region. Moreover, they were taken to a hospital 100 kilometres away instead of the one which was just a kilometre away which was also overlooked by the magistrate. The Madurai bench of the Madras High Court took up the case Suo Moto that is on its own and ordered the dismissal of the 5 policemen who were involved in the crime and their arrest upon altering the charges to that of murder under Section 302 of IPC. A reference was made to the case of D K Basu v. State of West Bengal ,where Mr. Basu, the chairman of the Legal Aid Services, wrote a letter to the Chief Justice of India raising concern over increasing custodial death cases in the nation, as to how the crime of it often went and unpunished and that how family members of the victim must be compensated in the respect of their suffering. This was inturn treated as a writ petition before the Supreme Court of India after Mahesh Bihari of Aligarh died in police custody. Where the petition raised concern over the excess power of the police and the need for compensation in case of violation of anyone's rights mentioned under Article 21 and 22 of the Indian constitution, the state of West Bengal is said to have had denied the allegations put on them stating that the petition is misconceived, inappropriate and misleading. On appeal the Supreme Court gave outlined 11 guidelines which are supposed to be followed compulsorily in cases of death of a person in custody and if not followed the official would be liable to be tried and punished for contempt of court .Arresting authority should have clear identification, name tags and designation and make a memo at the time of arrest, the arrested is entitled to inform any person about the same and has a right to be informed, the entry in the place of detention must be made. Most importantly he should be examined the when he is arrested if he has any injuries on his body and the same shall be recorded, he must also be subjected to medical examination every 48 hours and the copies of all documents including the memo is to be sent to the magistrate. He is to be permitted to meet his lawyer. At all districts or state headquarters a police control room is to be established where there all information of arrest of a person, place of custody and all relevant information of arrestees shall be communicated by the officer within 12 hours of the arrest and be displayed on the notice board. Why do the Custodial Death cases still go unheard ? Considering the present situation it would not be wrong to say or ponder upon the fact that has our government or the judicial authorities become sound proof to the matters of the ever rising custodial death cases taking place on our land. In spite of several years of independence we can see that there has not been any significant change either in the decrease the number of cases or in the development of any search law, statute or any such reform which shall cater to the means of so many prisoners or innocent or in fact even of the guilty members of a society who are tortured brutally and undergo the 3rd degree by the police ultimately leading to the death . Therefore, there must be a separate legislation which must be introduced and enforced within the territorial limits of the nation, considering the fact that there are so many legislations separately dealing with or under the Penal Code, punishments for specific offenses, however there is no such legislation or provision that specifically deals with punishment for custodial death cases. For example we can see that offense of murder is dealt under section 300 of IPC .Therefore there must be a separate Act or at least a provision that must specifically cater to and provide for the punishment of the offense of custodial death and the consequences of the same thereof . Moreover, what can also be done is that, a post can be created for an officer who specifically deals with investigating and looking after such cases within a city, at different police stations, particularly. The officer can visit a particular station every 5 days or within a week’s period, where he records the body marks and the injuries on peoples bodies and records statements of the convicted or the accused in custody, in case of any unaccountable hitting or torture. He can visit different police stations at the at state level, various days of the week and report such findings at a forum which should be created where such matters are recorded and looked into at the head office, immediately and are given consideration to.