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Custodial Deaths In India


A blot on Indian Administrative System is the working or the practice of the in-humiliation practice towards the custodial prisoners i.e., the "third degree torture" to the prisoners to extract the truth. However, today, it is also more being used by the police officials to gain promotions.

The 3rd degree torture or custody torture sometime also act as the reason for the death of the prisoners, also known as the Custodial Deaths of the Prisoners. In this article, same issue will be dealt as the background/history of custodial deaths in India, Outcomes and significant judgements given in accordance with Custodial Deaths.

The custodial death situation is a universal problem and it has been considered as the cruellest form of violation after the heinous crime called Rape. The irony in the statement is that the custodial means guardianship and here the saver only violating the laws and rules made for the citizen for their welfare and protection of humankind. The Indian constitution not only safeguards the rights of individual but also there are provisions for the safeguard of the rights of prisoners, which today being violated.

Introduction
Custodial Death is not a recent concept for the countries like India. It is a long old history where the phenomenon of Custodial death was earlier use to be carried out by the Britishers and over the past four to five years, violence and cruelty by police have increased dramatically.

The inability to hold law enforcement officials accountable for utilising cruel tactics and succumbing to torture by citing "performance of duty" as a justification reveals a lack of legislative protections in our judicial system. Sections 330, 331 and 348 of the IPC are those sections that make the control of the cruel and unusual punishment of the police officer.

But these policies are much less adequate to regulate such cruel and unusual punishment or abuse. Sections 76 of the Cr.P.C., Sections 25 and 26 of the Indian Evidence Act, and Section 29 of the Police Act, 1861 are those sections.

Definition Of Custodial Deaths: Under Ipc And Cr. P.C.

Custodial death is defined as a death that takes place while a person is in custody, and is either directly or indirectly related to or significantly attributable to activities that were carried out while the person was in custody. It covers fatalities that take place in a jail, on a police or even other vehicle, at a private or medical facility, or in a public space.[1]

In the exception to section 300 of the Indian Penal Code, it is has stated that a public employee is guilty of culpable homicide, which is not the same as murder, if they use excessive force and kill someone. In 1993, the Commission had made a general instruction that within 24 hrs of occurrence of any custodial death, the commission must be given intimation about it.[2]

Background Of Custodial Deaths

Nityanand Rai, the minister of state for home, said earlier this week in parliament that 233 alleged police encounters and 4,484 fatalities in detention have all been recorded in India over the past two years.[3]

Custodial deaths can happen naturally, without any participation from the police, for example, when a criminal defendant or accused person passes away from sickness. However, an issue occurs when law enforcement gets engaged in a person's death while that person is under their care. But because of the strategies used by the police in these situations, it becomes very challenging to demonstrate that they were at fault.

Sometimes, the police authority abuses the convicted even before an arrest has been made, allowing the police to argue that the injuries are not the result of violence committed while in their custody but rather happened earlier. The term "fake encounters," which is also a type of custodial death, has recently been used in the headlines. When these situations happen, all of the proof/documentation related to the incident resides with the police, making it very hard to demonstrate their wrongdoing. As a result, it is exceedingly difficult to show the culpability of the authorities and to establish their guilty.

The Indian Constitution gives everyone the right to life and liberty and outlaws any kind of interrogational torture intended to compel an admission of guilt. The Indian Constitution guarantees the security of prisoners and suspects in police and judicial detention facilities, however authorities like the police violate these legal protections and engage in acts of detention abuse and torture.

Types Of Custody For Prisoners[4]

The Custody means someone assigned for the protection of care or guardianship of something. For every Arrest is custody but not every custody will be held for arrest. For instance, a person in-charge of the room and 50% of the person in the room other than you are dangerous to rest person. Then it's the person's duty to take those 50% people into their custody. Here the person aren't arrested but are kept in the custody of the in-charge of the room.

Following are the type of custody the Indian judicial system has for the prisoners:
  1. Police Custody [5]

    An officer of the law arrests the suspect involved in the alleged crime after receiving information, a complaint, or a report about it to stop him from continuing to do the objectionable activities.

    In reality, the police are confining the suspect in their custody in a jail within the police station. The police officer in charge of the case may question the suspect during this detention, which cannot last more than 24 hours.

    The police officer has the time of 24 hours to interrogate the suspect and if he finds that the suspect is guilt then the duty of the police is to file charge-sheet after taking him to the Magistrate, failing which, it will violate the right of an accused in police custody.
     
  2. Judicial Custody

    In Judicial Custody, the accused is within the custody of magistrate. In the former, the accused is kept in a police station detention center; in the latter, a jail. When a person is taken into custody by the police, the Cr.P.C. takes effect, and they must be brought before a magistrate within 24 hours of the arrest.

    With due permission of the court, the police can take in-charge of the accused or suspect even after the court ordered the accused a judicial custody, i.e., the police can with permission can change the accused judicial custody to police custody. As, when the accused is in the judicial custody the police have no right of interrogation and police finds that interrogation is necessary as per the fact or instances of the case.


Laws Related To Police And Judicial Custody

Section 167 of the Code of Criminal Procedure governs the conditions for retaining a person in custody in India in order to further an investigation. A person may be held in police custody for up to 15 days on a magistrate's instructions, according to Section 167 of the Code. An executive magistrate may issue an order for a period of custody lasting up to 7 days, whereas a judicial magistrate may remand someone to any type of custody lasting up to 15 days.

Whereas in Judicial Custody[6], Section 57 of the CrPC is activated as soon as an accused person is taken into custody without a warrant. It expressly states that, pursuant to Section 167, a police officer may not hold a person for longer than 24 hours without a special order from a Magistrate.

The Section 167(2) of Cr. P.C. provides the condition of sending an accused to judicial custody which are:
  1. The concerned Magistrate may order the detention of the accused in the custody as deemed appropriate, for a term not to exceed fifteen days, regardless of the jurisdiction to try the matter; and
     
  2. The accused may be ordered to be delivered to a Magistrate with the jurisdiction if the Judicial Magistrate lacks the authority to try the case or commit it for trial and deems additional custody unnecessary.
     
That after the laps of 15 days of police custody the accused or suspect need to be sent to the judicial custody which will last long for:
  1. Ninety days if the probe relates to a crime that is punishable by death, life in prison, or a minimum of ten years in jail; or
  2. Sixty days for offences that fall under another category;
The Accused after fulfilment of the above time period of ninety or sixty days, is subject to release on bail upon posting bail in accordance with Chapter XXXIII's provisions.

Analysis
According to NCAT[7], 125 people died while in police custody in 2019. Of those 125 deaths, 93 (or 74.4%) occurred while the 125 people were in custody, while the remaining 24 (or 19.2%) perished in suspicious circumstances. Police claimed that 16 of the 24 had committed suicide, 7 had illnesses that caused their deaths, and 1 had slipped in the police station bathroom.

And according to the National Crime Records Bureau, there were 58 incidents of custodial deaths in 2017 that weren't even brought up in court.

Table 1 is the data available of the custodial deaths with the authority in 2019.[8]
Name Of The State Cases
Uttar Pradesh 14
Tamil Nadu 11
Punjab 11
Bihar 09
Madhya Pradesh 09
Gujarat 08
Delhi 07
Odisha 07
Jharkhand 06
Chhattisgarh 05
Maharashtra 05
Rajasthan 05
Andhra Pradesh 04
Haryana 04
Kerala 03
Karnataka 03
W. Bengal 03
J & K 02
Uttrakhand 02
Manipur 02
Assam 01
Himachal Pradesh 01
Telengana 01
Tripura 01

Table 2: Data of Custodial deaths from 2009 to 2018 in India.
An RTI was filed to collect the information and it was found that a total of 211[1] complaints of fake encounters staged by police around the nation were received by the NHRC. Out of the total, Andhra Pradesh had the most complaints with 57, followed by:
Uttar Pradesh with 39, Odisha with 22, Jharkhand with 13, Assam with 8, Tamil Nadu with 6, Madhya Pradesh with 6, Punjab with 4, Telangana with 4, Meghalaya with 3, Karnataka with 3, Kerala with 3, Maharashtra with 3, Rajasthan with 1, Manipur with 1, Uttarakhand with 1, Jammu & Kashmir with 1, and West Bengal with 1.
YEAR Total No. of Cases of Police Custodial deaths (Including Fake encounters)
2009 129
2010 70
2011 104
2012 109
2013 118
2014 93
2015 97
2016 92
2017 100
2018 70

Case Laws
  1. Joginder Kumar vs. State of U.P. and Ors.

    In the landmark judgement of Joginder Kumar vs. State of U.P. and Ors. 1994 {AIR 1349: 1994 SCC (4) 260}, The Honourable Supreme Court issued certain criteria on custodial torture. When the arrested individual is transported to the police station, the police officer must tell him of this privilege. The person who received notice of the arrest must be noted in the Station diary. It was further ordered that the police official will have the duty to present the arreseted person before the Magistrate to satisfy that the certain requirements have been fulfilled by them.
     
  2. Basu v. State of West Bengal[1]

    The extremely well-known case of D.K. Basu, the Honourable Supreme Court published a set of 11 instructions in Basu v. State of West Bengal {1997 (1) SCC 416}. Details of all staff managing the interrogations of the arrested individual must be entered in a registry. At the moment of the arrest, a statement of arrest should be prepared. The document must also have the detainee's signature and the time and date of the arrest. Police are obligated to provide detainees notice of their time, location, and custody arrangements. Within eight to twelve hours after the arrest, the local police in the affected region communicated through telegraph. At the location of detention, a record must be made in the Case Diary.
     
  3. State (Delhi Administration) v. Dharampal[2]

    The Supreme Court ruled in this case that the accused could only be placed in police custody within the first fifteen days of their appearance to the magistrate following their arrest, mentioning the proviso of Section 167(2).
In the event of judicial custody, the offender may be sent to prison either within the first 15 days or 4 even after that.

Conclusion
The police system in India employs force or third degree torture to interrogate the accused and extract information from him. As a result, the accused committed suicide[3] by severing his nerves, hanging himself, poisoning himself, or burning himself. Lack of proper training and preparation for interrogations, bias-based harassment of the accused, political pressure on the police to turn the accused in, inadequate training by senior police officers, lack of medical assistance for the accused, customary police practises of betting on the accused, and a disregard for the rule of law and human rights.

Bibliography
  • DK Basu v. the State of Bengal (1991) 1 SCC 416
  • State (Delhi Administration) v. Dharampal
  • Code of criminal procedure, 1973
  • Indian penal code, 1860
  • National Campaign Against Torture 2019, Annual Report http://www.uncat.org/wp-content/uploads/2020/06/INDIATORTURE2019.pdf
  • Uttar Pradesh second on list of fake encounter plaints with NHRC, The Times of India, 15 June 2019, https://timesofindia.indiatimes.com/city/lucknow/up-second-on-list-of-fake-encounter-plaints-with-nhrc/articleshow/69796083.cms
  • Judicial custody vs police custody iPleaders
  • Custodial Death Critical Analysis
     
End-Notes:
  1. 1997 (1) SCC 416
  2. 1980 CriLJ 1394, 21 (1982) DLT 50
  3. Custodial Deaths draft 1, https://blog.ipleaders.in/custodial-deaths/#Introduction (last visited Sep 13, 2022)
  4. Uttar Pradesh second on list of fake encounter plaints with NHRC | Lucknow News - Times of India, https://timesofindia.indiatimes.com/city/lucknow/up-second-on-list-of-fake-encounter-plaints-with-nhrc/articleshow/69796083.cms (last visited Nov 10, 2022)

Reference:
  1. Custodial Death Definition Law Insider, https://www.lawinsider.com/dictionary/custodial-death (last visited Sep 13, 2022)
  2. Custodial Deaths And Misuse Of Powers, https://www.legalserviceindia.com/legal/article-6816-custodial-deaths-and-misuse-of-powers.html (last visited Sep 13, 2022)
  3. Behind India's Custodial Death Numbers Are "Brazenly Ignored" Guidelines, Say Experts, https://thewire.in/rights/custodial-death-uttar-pradesh (last visited Sep 13, 2022)
  4. Judicial Custody And Police Custody-Recent Trends,
  5. Custodial Death Critical Analysis, http://ilkogretim-online.org (last visited Nov 10, 2022)
  6. Judicial custody vs police custody - iPleaders, https://blog.ipleaders.in/judicial-custody/ (last visited Nov 10, 2022)
  7. India | National Campaign Against Torture, http://www.uncat.org/tag/india/ (last visited Nov 10, 2022)
  8. Trends Of et al., India : Annual Report on Torture 2019, (2020)
    http://www.uncat.org/wp-content/uploads/2020/06/INDIATORTURE2019.pdf

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