OUTLINE OF CUSTODIAL
DEATHS IN INDIA
1.INTRODUCTION
Custodial death is the untimely demise of a convict or undertrails by the law enforcement authorities in the custody I.e. Police custody (when a person is secured under the supervision of police officials) or Judicial custody (when the person is kept under the charge of the concerned Magistrate). It is one of the heinous act which violates the essence of human rights and possess a threat to the people's safety ,law, order and peace of the country.
2.CAUSES OF CUSTODIAL DEATHS IN INDIA
Custodial deaths in India are rising at an alarming rate and is a matter of concern. There were 175 Custodial deaths in 2021-2022. Gujarat, Bihar, Maharashtra are some Indian states which accounts for highest number of custodial deaths in India. [1]
Excessive use of force by the respective authorities I.e. Police
Lack of accountability of police officials
Lengthy and slow judicial proceedings
Absence of a well defined legislation to safeguard the interest and rights of the people in custody
Lack of ratification of the international instrumentality such as U.N.Convention against Torture in the country.
Undernourished food available which deteriorates the health of people in custody
Rivalry between inmates which leads to physical harm inflicted on one another
Neglect of the officials towards health, sanitation and medical care of the undertrails or convicts.
There is no limit to Third degree torture during interrogation by the officials
3. LEGAL PROVISIONS
3.1 THE CONSTITUTION OF INDIA, 1950:
ARTICLE 21 ensures good quality of live with self respect and dignity to all people. It includes Right to Bail, right to free legal aid, right against inhuman treatment and right for speedy trail etc.
ARTICLE 20 provides protection against double jeopardy (a person can not be punished twice for the same offence) and self incrimination (a person can not be compelled to be witness against himself) etc.
ARTICLE 22 provides for fair and legal procedure of arrest of a person and rights available to the arresstee to prevent from unlawful detection. [2]
3.2 CODE OF CRIMINAL PROCEDURE,1973:
SECTION 41 states the grounds of arrest of a person in cognizable offence without warrant. It also laid down the duty of police officer and arrest made visible to family or close relative of the arrested person along with protection through advocate.
SECTION 46 states that a police officials can not cause death of the person during an arrest
SECTION 49 states that the police officials can not use more restraint than required to prevent an escape of the arrested person.
SECTION 54 states that the medical examination of the arrested person should be done.
SECTION 176(1) empowers the Magistrate to hold inquiry in case of death of the person in custody.
3.3 INDIAN PENAL CODE, 1860:
SECTION 330 AND 331 provides the punishment for inflicting injury to a person in order to extort confession or information.
Section 302 (punishment for murder), section 304 (punishment for culpable homicide), section 304A, and Section 306(attempt for murder)can be invoked against the authorities for custodial torture.
3.4 INDIAN EVIDENCE ACT,1872:
SECTION 25 AND 26 states that any statement made to police is not admissible in court and it can not be proved unless it is made before the Magistrate.
3.5 INDIAN POLICE ACT,1861:
SECTION 7 AND 29 provides for dismissal, penalty or suspension of police officers in case of neglecting their duties. [3]
4. FAMOUS CASES OF CUSTODIAL DEATH
4.1 D.K. BASU VS STATE OF WEST BENGAL [4]: The Supreme Court laid down the guidelines in the case to be followed by the Centre and State investigating and security agencies in case of detention and arrest.
The police personnel should wear clear name tag for identification during arrest
Memo of arrest should be signed both by arresstee and his family member or any known person to him
Any family member or close relative should be informed about the arrest in case of memo not been signed.
An entry should be made in the register about the arrested person
Copies of all documents including the memo of arrest should be sent to the concerned Magistrate for record
Police control room should be set up in all districts and state headquarters. The information of arrest should be communicated by the officer in charge of the arrest to the control room
Medical examination of the arrested person should be done within 48 hours of detention.
Arrested person should be allowed to meet his advocate during interrogation.
4.2 JOGINDER KUMAR VS STATE OF U.P. and ORS [5]
The Supreme Court laid down the certain criteria to prevent custodial torture. It ensured that the police officers perform their duty and make the arrested person aware about his right and to prevent illegal detention of the arrested person by taking him to the nearest Magistrate within twenty four hours of arrest.
4.3 STATE VS DHARAMPAL [6]
The Supreme Court ruled that the accused person can only be placed in police custody within first fifteen days of their appearance to the Magistrate.
4.4 YASHWANT VS STATE OF MAHARASHTRA [7]
The Supreme Court extended the imprisonment of nine cops who were involved in the custodial deaths that occurred in 1993 to bring accountability and prevent such heinous act
5.RECOMMENDATIONS
The recommendations of National Human Rights Commission should be implemented by the government
Speedy disposal of case by establishing special Courts to combat custodial death .
Use of Artificial Intelligence like body cameras and defibrillators to supervise jails and lockups
Services like medical care, trauma healing, mental health care should be provided to the people in custody
Sensitization and anger management programs for police officials
Implementation of strict laws to avert custodial deaths.
6. CONCLUSION
Custodial Death has become a social evil. It is morally and legally wrong at many levels. People will lose faith in the system as the protector have turned into predators. The judiciary is trying its best to avert custodial death by giving decision and guidelines but it requires the efforts and collective responsibility of the society, police, government and Judiciary to end custodial death.Custodial death will end if transparency, fairness, efficiency and accountability enters the system.
7. CITATIONS
1.Drishti IAS https://www.drishtiias.com/daily-updates/daily-news-analysis/custodial-death-1 (last visited on DEC18,2023)
2. JAGNAM SHASHIDHAR https://primelegal.in/2023/07/09/law-and-custodial-death/ (last visited on Dec 18, 2023)
3. WIKIPEDIA https://en.wikipedia.org/wiki/Custodial_deaths_in_India (last visited on Dec18, 2023)
4. AIR 1997 SCC 416
5. AIR 1994 SCC (4) 260
6. 1980 CriLJ 1394, 21 (1982) DLT50
7. (2018) 4MLJ (Crl) 10 (SC)
