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Custodial Violence: The Harsh Truth and Unrighteous Act

Rule of Law
the law is supreme, no one is above law. It has no meaning when one is deprived from his liberty when every person in front of the law is equal and has equal rights, be it any authority of law or any other random person, both are to be treated equally. This implicates that the government and its officials have to act within the ambit of the laws made.

The Indian Constitution clearly states that, the police are the representative of the state who�s sovereignity lies to serve people of India as public servant and the police station as public property. Custodial torture, inhuman treatment, handcuffing prisoners, third degree methods are often used by police officials during the course of their official duties which are against the norms of the civilized nations and often violates human dignity and the principle of rule of law goes in mud.

The main aim of police is to apprehend criminals , abide by their duties, protect the citizens and prevent the commission of crime to maintain law and order. Custodial violence is something which prevails no matter which government is ruling. Torture is done on a regular basis by enforcement officials during the ambit of the criminal investigation.

In India, custodial violence is not specifically mentioned in the Indian Constitution but the Ministry of Home Affairs strictly claims that there are adequate provisions for safe guarding the rights of human beings and sufficient safeguards against police brutality and torture also exist. Although the word �torture� is not incorporated in our Constitution but under Article 21 of the Indian Constitution do imply protection against torture. India is a Democratic State where every person has the right to live with dignity. But unfortunately cases of custodial violence are rising with immense speed.

Legal Provisions Under Which Person Is Protected From Custodial Violence

Ex-Post Facto Laws under Article 20(1):- Under this article, the Constitution clearly states that no person shall be convicted of any offence except for violation of law in force at the time of commission of offence, nor to be subjected to any greater fine which might have been implicated under the law in force at the time of commission of an offence. The maxim nulla peona sine lege gives the meaning to the concept of ex-post facto laws. This maxim clearly states no person shall be made to suffer except for a distinct breach of criminal law.

The implication of this maxim can be broadly stated as under:
  1. It prohibits retrospective imposition of criminality;
  2. It prohibits formulation of penal laws in excessively vague and wide terms;
  3. It prohibits the extension by analogy of the criminal rule to cover a case not obviously falling within it.
In the case of Colden v. Bull it was observed that, �Every ex-post facto law must necessarily be retrospective but every retrospective law is not ex-post facto law. There is a great and apparent difference between making an unlawful act lawfully and the making an innocent action criminal and publishing it as a crime.�

The concept of ex-post facto law is provided under article 20(1) of the Indian Constitution and is also recognized under the international instruments as Article 11(2) of the Universal Declaration of Human Rights which states that �no one shall be held guilty of any penal offence on account of any act or omission, which did not constitute penal offence, under the national or international law at the time when it was committed�.

The scope of article 20(1) was clarified in the case of Soni Devrajbhai Basubai. It was observed by the apex court that the appellant will get relief under article 20(1) and not under section 304-B as it didn�t had any existence before.

Protection against double jeopardy under article 20(2):- article 20(2) of the Indian Constitution states that no person shall be prosecuted and punished for the same offence more than once. It is based on the maxims nemo debet bis vexari and si constat curiae quod sid pro una et eadem causa, which means that no one mist be vexed twice if it appears to the court that it is for one and the same cause.

To cover under the provisions of clause 2 of Article 20, the following conditions are necessary:
  1. There must be previous proceedings before a court of law;
  2. The person must have been �prosecuted� in the previous proceedings;
  3. The benefit does not flow in case of departmental action even though based on same facts;
  4. The application of the benefit is for an offence and in a judicial proceeding only.
Right not to be Witness against himself under Article 20(3):
Article 20(3) of the Indian Constitution states that no person accused of any offence shall be compelled to be a witness against himself. This article comes into operation as soon as a formal accusation is made whether before the commencement of prosecution or during the course.

Right to Life and Personal Liberty under Article 21 of the Indian Constitution:
Article 21 of the Indian Constitution states that no person shall be deprived of life or personal liberty except according to procedure established by law. Article 21 does not contain any express provision against torture or Custodial Crimes. In the Landmark Judgment of the case D.K. Basu v. State of West Bengal, the apex court observed that �Custodial torture is naked violation of human dignity and degradation which destroys, to a very large extent, the individual personality. It is calculated assault on human dignity is wounded, civilization takes a step backward � flag of humanity must on each such occasion fly half-mast�. SC also held that torture by police struck a blow at the rule of law.

Section 163 of the Criminal Procedure Code, 1973:
section 163 of the CrPC provides that no police officer or any other person in authority shall offer or make any inducement threat or promise. Withal, no police officer or person shall prevent any person from making in the course of any investigation which he may have disposed to make of his own free will.

Section 164(4) of the Criminal Procedure Code, 1973:
It states that the confession made by any accused should be made voluntarily by the same and should be made in the presence of the Magistrate and the accused should check that the statement made by him is reported correctly and truly.

Section 348 of the Indian Penal Code,1860:
This sections states that any person who is wrongfully confined for extorting confession, or compel restoration of property. It penalizes by giving the punishment of imprisonment which may extend to 3 years and is also liable for the fine. In other words, it means that the accused cannot be compelled to make any statements against his will. It is the fundamental principle of criminal law that �Everyone is presumed innocent until proven guilty�.

Section 24 to section 27 of the Indian Evidence Act, 1872:
Section 24 to 27 states that any confession made by inducement , threat and promise or made before police officer, or made in the police custody, or any information deposed by accused which amounts to confession is not admissible by court.

Rape While In Custody

Sexual victimization of women occupies a significant place in the penal statutes of every country. Rape is one of the most damaging and heinous crimes, these crimes are offences against dignity and modesty of women. In the case of Tukaram v. State of Maharashtra, the SC of India acquitted the accused policemen. In this case, a 16 year old tribal girl was raped by two policemen in Desai Ganj police station.

The newly designated offence of custodial rape inserted into section 376 of the Indian Penal Code, 1860 created distinct classes of custodial rapes to include a rape committed not only by the police officials but also by the police servants. The compensation set up by the court in the case of P. Rathnam v. State of Gujarat, was rupees 50,000 to the victim.

Death During The Custody By Custodial Violence

In the present scenario, custodial deaths are a serious concern which is threating the society even to trust the police who is supposed to protect the citizens. The act is barbarous in nature and also gruesome to every extend. There is no doubt that the police personnel are treated as life saviors but behind the bars they always risk the lives of prisoners. It often constitute to murder if any person is killed without any judicial sanctions.

Death caused by the police officers under their custody is the heinous crimes of all. Death in the police custody is a serious stigma on the image of the police. There has been cases where police officials beat the person till he dies. There are times when police use this method to solve any investigation. In the case of Gauri Shankar Sharma v. State of U.P., the deceased was arrested for the offence of Dacoity, later the police officials tortured him to that extent which led to his death. The compensation to the victim�s family given in the case of (Smt) Bheemamaa v. SHO, police station, Uppal, Hyderabad was rupees 20,000 as ex-gratia.

Compensation For Custodial Violence

Earlier, it was said that no one can pay the price for the man�s life. But now it is just a matter of time that people have started fixing the price of every man�s life. In the earlier times the Indian Judiciary system had a view that no compensation or monetary relief can be awarded under Article 32 of the Indian constitution but now that the number is increasing day by day the court has started giving compensation for infringement for Fundamental Rights.

The Supreme Court in the case of Rudal Shah v. State of Bihar, it was observed that in the exercise of its jurisdiction under Article 32, payment of money in the nature of compensation consequential upon the infringement of Fundamental Right to life and personal liberty.

To sum up all the above mentioned cases and theories, it is the need of an hour for better law enforcement and strict punishments to be implied on the wrongdoers because if they will not be punished properly there will be a time when people will be scared to go to police. Mere punishment to the offender will not do the job and will not at all give solace to the family of the victim- civil action for damages has to be drawn and burdensome the judicial process.

It can be said that Judicial System of India has touched the problem of custodial violence. The Court till now has been able to give voice to the voiceless thus, the researcher can conclude that the judicial pronouncements it seems that regulating custodial violence is a fact.

  • The Constitution of India
  • The Indian Penal Code, 1860
  • The Criminal Procedure Code, 1973
Articles referred:
  1. Custodial Torture:
    Constitutional and Legislative Provision in India�, available at:- (Last Accessed on 25th August 2020).
  2. Judicial Innovation to curb the menace of Custodial Violence in India, available at:- (Last Accessed on 25th August 2020).

    Award Winning Article Is Written By: Ms.Khushi Sharma
    Awarded certificate of Excellence
    Authentication No: JU34320134159-8-0621

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