An effective police system is a foundation on which the structure of
maintenance of law and order rests. The role of the police cannot be
underestimated in a democratic society. It plays a vital role not only in
enforcing laws and preventing crimes but also in protecting the life and liberty
of the public.
This is further enunciated in the Law Enforcement Code of Ethics by the
International Association of Chiefs of Police that the role of law enforcement
officers is to safeguard lives and property, service mankind, and respect the
constitutional rights of liberty, equality, and justice. However, it is not a
hidden fact that the police have been engaged in acts that go completely against
their role. The power endorsed to them to carry out legitimate functions is
susceptible to abuse.
Over the past few decades, the police image has been prominently tarnished
because of the brutality inflicted by them against people in police custody.
According to the National Crime Records Bureau's data, 1888 custodial deaths
were reported in the last two decades. Out of those, 893 cases were registered.
In total, charge sheets were filed against 358 police personnel. Even out of
them, only 26 personnel were convicted. Not surprisingly enough, custodial
violence has become a major human right issue.
Among the custodial tortures, custodial rape is considered one of the most
serious and cruel crimes. Crimes in custody raise significant questions with
regard to the state's responsibility to safeguard and protect the citizens. In a
democratic society, everyone including the state is governed by the rule of law.
The enforcer of the law, i.e., the police is also within the ambit of the law,
and thus, it cannot be allowed to transgress the law, irrespective of whether
they are dealing with the lawbreaker or not.
In past, there have been several instances where heinous crimes such as rape
have been committed by police officers on the vulnerable of society. As per the
NCRB report, In India, merely 29 percent of rape crimes are reported, and out of
that also conviction rate is just 32. Thus, as per the statistics, it is not
easy to prosecute a perpetrator in rape cases, let alone public servants in
cases of custodial rape. Therefore, it becomes significant to understand the
nuances of custodial crimes. The researcher has attempted to do the same.
Custodial torture has become a systematic phenomenon. As per the National
Campaign Against Torture, in 2019, around five people died in the custody every
day.  NCAT documented cases even suggests that the statistics is far more
worse than shown. There have been horrific cases of custodial deaths reported in
the country in past years. In June, 2020, P. Jeyaraj and his son were alleged to
violate Covid-19 guidelines and in pursuance of that, they were arrested.
Later, it was alleged that the police sexually assaulted and tortured them. in a
few days, they succumbed to death. It created a huge public outrage throughout
the country and the demand for police accountability was revived. This is not
a single instance, there have been several instances of the police abusing their
power, and physically assaulting people (especially reported during the Covid
time). As per civil rights lawyers, former police officers, and NGOs, death in
police custody is generally the result of police violence.
Adopting third-degree measures is considered an ordinary exercise. It is
supported by the public as a correct method to thrash goondas and bad
characters. In turn, what ends up happening is the institutionalization and
legitimization of these practices. The situation becomes worse when the inmates
in custody are women. They are inflicted with additional modes of torture such
as inserting iron sticks or rods in private parts, pressing lighted cigarettes
on delicate parts, etc.
The women face rape and molestation not only from the custodial staff but also
from the male inmates. Even sometimes minor girls are not spared as evident in
the Mathura rape case. Despite the presence of strict provisions in the Criminal
Law, they are still raped, molested, and mistreated in jails, police stations,
and military interrogation centers. Among all the crimes, rape is considered one
of the most heinous crimes inflicted on the human body.
When a person is under
the strict control and supervision of another person/institution, it can be
called that the person is in custody. Though the custodian acquires absolute
power over the individual, it has a strong duty to protect the rights and
liberty of the individual. When the custodian starts to take undue advantage of
their position and forces any female inmate to engage in sexual intercourse with
him, it can be called custodial rape. In custodial rape, the aggressor not only
abuses power and violates his duty but also infringes on the other person's
The instances of custodial rape came into the limelight in the late 1970s and
80s. During the National emergency, the state exercised arbitrary powers and
curtailed the liberty of citizens to a great extent. In that time, three
cases of custodial rape gain the limelight-
In Mathura's case
, a young tribal girl, along with her brother and relatives
went to Desaiganj police station to lodge an FIR of her abduction. However, the
police officers asked her brother and relatives to go while the girl was inside
the station. Subsequently, the police officers raped her. In a shocking
pronouncement, the Session Court acquitted the policemen on the ground that that
the girl was habitual to sexual intercourse and raised no alarm.
HC overturned the decision, the Supreme Court set aside the High court decision
and acquitted the policemen on accounts of no suggestive evidence of rape. After
the judgment, there was huge criticism and widespread protest by women's
organizations. In the Rameeza Bee case, a lady was arrested along with her
husband. She was kept in custody and was raped by three policemen. In the Maya
Tyagi case, police officers arrested a six-month pregnant lady on fake
charges. She was raped and beaten by the police officers.
These three cases had a commonality as all incidents were targeted forms of
violence by public servants against a weaker and vulnerable section of society
i.e., women. After the following cases, the huge public outcry culminated in
giving momentum to the anti-rape movement, and it finally led to the much-needed
amendment in the Indian Penal Code, the Code of Criminal Procedure and the
Indian Evidence Act in 1983. The amendment aimed to redress the question of
consent and character. But even after significant amendments were made, the
court in cases considered the facts like the victim voluntarily came into the
room, and the accused committed it in a fit of passion facts relevant.
The following legal reforms are made in the cases of custodial rape:
- Expanding the term Custody:
Generally, custody is associated with police stations and lock-ups. However,
it also includes:
- A public servant who takes advantage of his official position and commits
- A person in the position of management or staff of jail or remand home
or other places of custody who takes advantage of his position and commits
rape on the women.
- A person in the position of the management or the staff of a hospital
takes the advantage of the position and commits rape.
- Increase in the sentence of punishment:
Pursuant to the 1983 amendment, the punishment for 'custodial rape' increased
from the punishment for 'rape'. Now the minimum punishment is 10 years, which
can extend to life imprisonment and a fine.
- Action against the non-registration of First Information Report:
In cases of custodial rape, there have been several instances of the denial of
the police officer to register an FIR. In a welcoming step, the Criminal Law
Amendment Act, 2013 added S.166 A in IPC which punishes a public servant if he
refuses to file an FIR in cases of cognizable offenses punishable under S.326A,
S.354, S.354B, S370, S.370A, S.376, S.376A. S.376AB, S.376B, S.376C, S.376D,
S.376DA, S.376DB, S.376E or S.609. The minimum punishment is 6 months which may
be extended to 2 years and shall also be liable for a fine.
- Shift in Burden of Proof:
With respect to the present context, S.376B and S.376C was added, which
exclusively deals with sexual intercourse by public servant with women in
custody, jail, remand home etc. In CrPC, it was added that the rape trials would
have in-camera proceedings. More importantly, Sec 113A was added to the IEA.
According to it, if a woman states that she did not give consent, then it would
be presumed that the act was non-consensual.
As already mentioned, major changes
in IEA and CrPC have shifted the burden from women to the accused. The burden of
proving in the case of rape is on the accused to prove that the woman consented.
The reform taken in this regard is commendable.
Here, the woman's testimony has
been par with the accomplice's testimony. Though the accomplice's testimony
needs to be corroborated, the apex court has stated that there is no need for
corroboration in the case of rape cases and even asking would be adding insult
- No sanction required from the government is required:
Before the amendment of 2013, as per the CrPC provision, government sanction was
required before initiating the proceedings against public servants for their
acts committed in the discharge of their official duties. After 2013, in a
welcoming step, the above requirement was removed if the public servant is
alleged to have committed an act under Section 375 IPC.
Procedure in cases of custodial crimes
The IPC has special provisions to deal with cases of custodial violence. It
includes S.220 which punishes an officer who has the legal authority to confine
a person but uses the authority to maliciously or corruptly keep the person in
custody. S.330 and 331 deal with voluntary causing hurt or grievous hurt to
either compel restoration of property or extort confession.
376(2) explicitly deals with custodial rape.
As per the normal procedure in custodial violence and rape cases, on the initial
complaint, an FIR is registered at the police station. According to S.154 CrPC,
it is obligatory for the police to register information in cases of cognizable
offences. After that, a medical examination is conducted of both the accused and
Subsequently, a police report is submitted to the magistrate.
In furtherance of that, the magistrate conducts a preliminary inquiry to find
out if there is a prima facie case. If there is then the accused is committed to
a trial. But, if the evidence is not sufficient, the charges are discharged
against the accused.
It could be hardly doubted that there has been a lack of statutory and
constitutional provisions to safeguard the life and liberty of a citizen. In
cases such as Nilabati Behra v. State of Orissa
 and D.K Basu v. State of
, the Supreme Court has recognized the arrested person's right
and prescribed guidelines to remove possibilities of custodial violence. In
light of those cases, CrPC was also amended. However, are the procedures and
guidelines laid down are followed is the vital question?
Analysis of the Ground Situation
As mentioned earlier, a proper procedure is laid down for investigation,
charges, trials, hearings, etc. The pace at which the following cases were
closed is shocking-
To take a few examples, an FIR was launched at Okhla Police station on 18 Jan
1993 against the case of custodial rape. The case was closed on 25 Nov 1993. All
the accused were acquitted. Similarly, in another case, an FIR was registered in
May while the accused were acquitted within a year.
It could be argued that
these were exceptional instances. However, as per the data, between 1989 and
1993, around 22 police officers were charged with rape, but none of them was
convicted. The pace at which the following cases were closed is shocking. In
these cases, the trials were mere formalities to acquit the accused. There could
be many regarding behind it.
As it is committed by the public servants under the shield of uniform within the
lock-up, police station, and other governmental premises, the victim in those
situations becomes totally helpless. Even registering an FIR becomes a difficult
task. In the past, there have been various instances where it was discovered
that the police refused to register an FIR.
Sometimes law gives immunity such as
Armed Forces and Special Powers to central forces such as the army or police or
sometimes due to the police standing order and political pressures to suppress
crime in the state, FIRs are not registered. The Indian Institute of Public
Administration conducted a study called "Image of the Police in India
", it was
found in the report that around 50 percent of the people mentioned the
non-registration of the FIR as common malpractice by police officers.
are many other factors that account for the non-registration of FIR which
includes corruption, political connection, and a desire to keep the crime report
low. As registering an FIR in cases of custodial violence is difficult, the role
of the magistrate becomes extremely important.
The Magistrate Has The Power To Take Cognizance Of The Offence Under Any Of
The Three Conditions Laid Down In S. 190:
- upon receiving a complaint of facts which constitute such offence;
- upon a police report of such facts;
- upon information received from any person other than a police officer,
or upon his own knowledge, that such offence has been committed.
Taking cognizance means the magistrate has to apply judicial mind. So, when a
Magistrate takes cognizance of the offence on the complaint, he/she shall
proceed to examine the complainant under S.200. Furthermore, when an accused
informs the magistrate about the custodial violence faced by him/her, he can
treat it the verbal accusation as a complaint under S. 2(d) and can either
proceed according to the procedure given in Chapter XV of the CrPC, which deals
with the complaints to the magistrate, or direct an investigation by the police
under S. 156(3) CrPC.
However, it has been noticed over the years that when an arrested accuses
custodial torture, Magistrate often gives a show cause notice to the officer. At
the outset, it seems appropriate practice. However, going deeper into it, the
issuance of show cause notice to alleged police officers is ex-facie illegal.
The police officer to whom the notice is served is an accused; thus, the
magistrate does not have any right to hear the accused before deciding whether
to prosecute him or not. The Supreme Court reiterated the same in the case of
Chandra Deo Singh v. Prokash Chandra Bose and Anr .
Furthermore, the Prevention of the Human Rights Act gives power to individuals
to file complaints in cases of violation of human rights. Subsequently, if the
inquiry reveals any kind of human right violation, the National Human Rights
Commission can recommend the concerned state/central government to initiate
prosecution or pay monetary compensation or take any other action. Though at the
outset, it seems an appropriate remedy, it has many underline problems with it.
Often, the dependence on the government to take action results in delays. As per
the report of the National Human Right Commission report, NHRC recommended
monetary relief in 757 cases in 2017-18. However, the state government granted
relief only in 151 cases. The police officers even if found guilty in the
cases of custodial deaths are often than not, manage to escape the punishment,
and many victims are not even granted compensation.
As per the report of the PUDR, the court orders are not followed. For instance, last year, the Supreme
Court gave clear directions to install CCTV cameras in every police station.
This direction was openly defied. Furthermore, In the case of D.K Basu v. State
of West Bengal
, it was held that the although the police have the right to
investigate and interrogate the accused, third-degree tortures are not allowed.
In the State of Uttar Pradesh v. Ram Sagar, the court pronounced that in the
cases of custodial violence, the burden of proof is on the police officers.
Procedural Issues In Cases Of Custodial Rape:
- Late Complaint:
Usually, an issue that arises in cases of custodial rape cases is associated
with lodging a late complaint. There are many reasons for filing a late
complaint including the social backlash associated with rape, the physical and
mental injury women suffer, and the fact that it requires more courage to file a
complaint against a policeman. However, these facts are often than not ignored.
Rather a late complaint is used as the ground to doubt the testimony of the
victim. Moreover, delays in investigation and filing a late charge sheet are
also used as grounds to avail bail by the accused.
- Test Identification Parade:
In a routine procedure, a Test Identification Parade is conducted. In the test,
the complainant has to identify her assailant. At first glance, no apparent
problem in these tests is realized. However, there is an underline problem with
it. For instance, in Seemapuri case, a Policeman raped an 11-year-old girl.
After that, it took a week to record the victim's statement as there was no
Following that, she had to undergo three test parades.
Though she initially recognized the policemen involved, she failed to identify
them in courses of three parades resulting in the ability of police officers.
These tests are accompanied by intimation which further haresses the victim.
Though there are many valid reasons for conducting the test, the problem
associated with this cannot be undermined.
- Obstacle in the evidence collection:
It is important to understand that custodial rape differs from rape in many
aspects. It is commonly believed that men have more power over women in rape. In
custodial rape, this social power is intensified as it is backed by the police
and legally sanctioned authority. Even the ability to access supportive
mechanisms becomes highly ineffective. Under the criminal justice system, the
crime committed is considered a crime against society, and for that reason, the
state being so-called the "protector" of the people prosecutes the criminal and
not the victim.
But in cases of custodial rape, the agent of the state, i.e.,
the police itself is involved in the heinous crime. Due to that, it becomes
challenging and difficult to not only prosecute but also punish the public
servant who is involved in the crime. As the offence is committed within the
premises of government-controlled institutions, there is a great scope for
mishandling the evidence from the place of the crime.
- Problem with Implementation:
In many instances of custodial rape cases, it has been observed that dismissal
under Article 311 of the Indian Constitution is prompt. However, it is generally
followed by a disregard for procedures which leaves the path open for the
dismissed police officer to reinstate in services again.
- Lack of adherence to the guidelines:
Despite instructions from the courts, there has been a lack of adherence of the
guidelines at the ground level. For instance, in 1986, in a case of custodial
rape, Gujarat police raped Guntaben. In front of a crowd, she was stripped
naked, and later, she was raped by several policemen in the truck. Subsequently,
an advocate filed a Public Interest Litigation. The Supreme Court gave the order
for the investigation.
It took several years for CBI to complete the
investigation. As per the CBI report, the state government was reluctant to take
steps. Subsequent to the delays, SC ordered 50,000 in compensation. In
another case, a news report disclosed that the army personnel of Assam Rifles
raped 25 tribal women.
A PIL was filed and pursuant to that, the inquiry was
conducted which confirmed the rape of some women. However, the state government
and Assam Rifles tried their best to silent the case. Hence, it could be
noticed that despite the directions of the courts, inquiries have taken several
years. In many cases, PIL has also been futile. The guidelines given by the apex
court have largely been confined to academic interest.
Recently a Haryana woman protested outside the Chief Minister's house over the
inaction on the part of the police. The woman alleged that she was being raped
by a senior police officer in Amritsar jail. Despite registering an FIR against
the Punjab police officer, no action has been taken against them. Even the
accused senior police officer is currently posted as the commander in Pathankot.
Therefore, from various instances, it could be deduced that the state government
does not want to take action against such officers in order to save the image of
Other factors leading to Custodial Crimes
- Lack Of Adequate Mechanism To Hold Police Accountable:
The existing system in India is not adequate to hold the police accountable.
Generally, police brutality goes unreported and unnoticed. The lack of an
accountability mechanism and distrust in the police further discourages people
from filing FIR against the police officers. The court recognized the problem
and in the case of Prakash Singh v. Union of India, the Supreme Court issued
directions in order to ensure the accountability of the police.
One of the seven
directions given by the Supreme Court was to set up the Police Complaint
Authority at the district and state level, to address the complaints against the
police officers including the refusal to file FIRs, allegations of improper
investigation, high-handedness against the police and custodial torture. These
directives were significant, however, even after fourteen years of the judgment,
most of the states have not yet enforced these directives.
- No public scrutiny
Torture is considered as an assault on human dignity. Custodial torture is
generally conducted to isolate, humiliate, cause physical pain, and
psychological drama to break down the body or obtain information. Generally, it
is used by the state-controlled mechanism to repress dissent. Once torture is
allowed, the state starts using it for broad purposes. It significantly differs
from other crimes as what happens within the four walls of government premises
is not open to public scrutiny.
- Undue advantage of the vulnerable section of the society
Another aspect of custodial rape is with respect to the people who are generally
the subject to it. As per the prison data, at least two in three prisoners
belong to social groups such as Scheduled Castes, Schedules Tribes, or Other
Backward Classes.  As a result, people from the poorer sections and the
marginalized castes often face the torture inflicted by the powerful group i.e,
As per the analysis of NCAT, in 2019, 125 people died in the custody
belonging to the marginalized community. This marginalized section of society is
neither financially powerful nor has a political connection, which leads to a
lack of protection for their interest. It has been noticed that affluent
individuals are mostly not subjected to such public brutality as the police are
cognizant of the fact that if they inflict any kind of violence on resourceful
people, they could immediately reach higher authorities.
- Nexus between the police and local residents
A nexus between the police and the local residents could be the reason behind
the increase in the power of the police. It is evident from the PUDR
investigation. According to it, in four different cases of custodial rapes,
there was the presence of civilians. This nexus is beneficial for both the
police and civilians.
For the police, it provides a social base in a particular
locality and for the civilians, it provides them the privilege of knowing them.
These civilians use the powerful connection to their own advantage. For suppose-
If a local resident has enmity with another, he may use that police connection
to inflict torture on that person.
- Lack of adequate infrastructure
The infrastructure facilities in the police station are not proper. In many
police stations, there are neither separate rooms for the specific number of
persons nor female lock-ups. In most custodial rape cases, rapes are committed
on the women, who are alone at the mercy of male constables and officers at odd
hours. Moreover, there is a shortage of police officers, especially female
- Political interference
It is no doubt that in India, political interference can be found everywhere. On
the one hand, in lieu of the benefits from political parties, some police
officers bent down and do not hesitate to commit custodial crimes. On the
another, honest officers are labeled as difficult and non-cooperative. The later
officers are then sidelined into non-operative roles. As the political parties
have the power to transfer and end the career path of the police officers, more
often than not, police officers have no choice but to comply with the directions
of the political parties.
When a custodial crime takes place, it becomes necessary to invoke the criminal
justice system. As discussed in detail, the complaint has to reach the police
station to file FIR. However, in a situation when the alleged offender is
himself connected with the enforcement of the law, the procedure laid down might
The Supreme court while it was dealing with a custodial rape case, it directed
the Central Bureau of Investigation to investigate the case. In various
instances, the courts have directed judicial officers like District or Session
Judge, and Chief Judicial Magistrates to investigate cases of custodial
violence. Therefore, it clearly shows that there is a need for an independent
agency to investigate such cases. Secondly, as per the research of the Asian
Centre for Human Rights, the arrested person suffers a high risk of violence in
the first twenty-four hours.
However, there is an absence of safeguards to ensure safe custody. Various
mechanisms can be adopted for the same such as recording the detention, prompt
access to a lawyer, independent monitoring of places of detention, proper
supervision of the functions, and the conduct of the police officers. Thirdly,
there is a need to make provisions that make it conducive for the victims to
file complaints in these cases without any fear.
A great role has been played by the National Human Right Commission in bringing
such cruel crimes to the attention of the public and spreading public awareness
about the remedies available. These types of organizations should also be
encouraged to protect the life and liberties of the people. Lastly, there is an
urgent need to set up an accountability mechanism to ensure the conduct of
police officers. The judiciary should ensure that the state government complies
with its guidelines.
It has been observed that in custodial rapes the conviction rates are lower. The
researcher has pointed out various procedural issues which could be the possible
reason behind low conviction rates. Though brutality with such offences has been
recognized, when it comes to its implementation various problems are
It includes non-registration of FIR, lack of procedural compliance by the
Magistrate, filing of late complaints, problems in evidence collection, and lack
of adherence to the guidelines including state governments reluctance to take
action, etc. It needs to be realized that the aim and objective of the prison is
to reform the individual. It should be run with the object to contribute public
Crimes in the custody infringe on human rights, which strikes at the root of the
rule of law. The violence of any kind cannot be justified in a democratic
society. Generally, the police think the use of force is necessary to obtain a
confession. Such kind of practice is futile as these confessions are not
admissible in a court of law.
Moreover, violence might be counterproductive as it can turn innocent suspects
into a criminal. Therefore, the proper management of jails become significant.
The procedure of the recruitment of police officers should be based on
scientific lines. It should also include the test of their physiological and
It should be ensured that trainees have knowledge of the law. It is high time
that serious steps should be taken to curb custodial violence. In an era of
human rights and any kind of human violation, especially by the protectors of
citizens should not be tolerated and strict steps should be taken.
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convicted: Official data, India Today, https://www.indiatoday.in/india/story/custodial-deaths-india-policemen-convicted-ncrb
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- Supra at 2.
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- Rameeza Begum v. D Armugam s/o Late V E Doreswamy,
- Sheo Kumar Gupta and others v. State of U.P, AIR 1978 ALL 386.
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- �376, Indian Penal Code.
- �166A, Indian Penal Code.
- Supra at 2.
- Sarfraz Nawaz, Custodial Violence and Role of A Magistrate, https://jorhatjudiciary.gov.in/study_materi
- (1993) 2 SCC 746.
- (1997) 1 SCC 416.
- People's Union for democratic rights, Custodial Rape: A report on the
aftermath 6 (1994).
- The National Police Commission, Government of India, Fourth Report, June
- Supra at 16.
- AIR 1963 SC 1430
- Supra at 4.
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- P. Rathinam v. Union of India, 1994 AIR 1844.
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Litigation in India, Jstor, https:// www .js tor.org/stable/43953814.
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- (2006)8 SCC 1.
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- Aneesha Mathur, 10.5% of cops in India are women, only 1 in 3 police
stations has CCTV: Study, India Today, https://www.indiatoday.in/india/story/india-justice-report-women-police-representation-cctv-cyber-cells-help-desk-1973423-2022-07-08.
- Torture in India 2010, Asian Centre for Human Rights, p.5.