Policy Custody in India

By Chitranjali Negi
Lawyer at Sumpre Court of New Delhi

India is modernizing rapidly, but the police continue to use their old methods: abuse and threats.It’s time for the government to stop talking about reform and fix the system.When a person is given inpolice custody, he remains in custody of police, i.e. in police lock-up. Policecustody can not be given beyond 15 days except where there is special provisionto grant PC for more than 15 days. Police has unfettered powers to interrogatethe accused in police custody in a lawful manner. As per section 167 of Cr. P.C. The accused remains in thecustody of Police. Police has physical control over accused. Police custody isgiven in non-bailable offences, depending upon the circumstances of the case,to facililatate investigation. Police custody can not be given in bailableoffences.

Judicial custody, the accused technically remains in the custody of the magistrate. He can be kept in jail or other place of safety. Police can not interrogate the accused without permission of the magistrate if the accused is in judicial custody.  Judicialcustody means that the accused is technically in the custody of the Magistrate.Police cannot interrogate a person in judicial custody without permission ofthe concerned Magistrate/court. He can appeal in the higher court immediateafter the judgment or in the same court after 3 days. -DVRaoAdvocates-Hyderabad (Civil & Constitutional), Supreme court of India

 Most of the violations of human rights take place in the management of law and order, by the police. In India, the history of human rights violations in police custody can be traced to British period. Even after 66 years of independence, in a democratic country like India, the police remains virtually a terror to the people and almost absolutely unaccountable for the violations of human rights of people in their custody. Through custodial torture, custodial deaths and other forms of human rights violation in police custody abuses, no static steps have been have been taken so far for a penitent solution. Since conviction rate is considered as the yardstick to measure the ability of an investigating police officer, every police officer would try to accomplish the maximum conviction rate to his credit by hook or crook. This will definitely help to increase the rate of police torture. It is really pathetic that the successive governments have persistently refuse to investigate the abuses reported in newspaper. Now days custodial violence has become a part of the police culture and the incidence of custodial deaths is quite common.

“BrokenSystem" sets out detailed recommendations for police reform drawn fromstudies by government commissions, former Indian police, and Indian groups.Among the major recommendations are:

  Require the police to read suspects theirrights upon arrest or any detention, which will increase institutionalacceptance of these safeguards;

·Exclude from court any evidence police obtainby using torture or cruel, inhuman, or degrading treatment in suspectinterrogations;

· Bolster independent investigations intocomplaints of police abuse and misconduct through national and state humanrights commissions and police complaints authorities; and

· Improve training and equipment, includingstrengthening the crime-investigation curriculum at police academies, traininglow-ranking officers to assist in crime investigations, and providing basicforensic equipment to every police officer.

The subject of torture and death of person in police custody has been, apart from being main subject of concern by the civil society in general and organizations concerned with the protection of civil liberties such as PUCL etc., have also been matters of authentic adjudication by the APEX COURT namely Supreme Court of India.

In fact the subject formed the very first case of the Supreme Court of India in what is known as "A.K.Gopalan VS State of Madras" reported in "AIR 1950 SC 27" up to date i.e., until 2010 & 11 but more specific cases on the subject of torture and custodial deaths are as following:

1. "Sunil Bathra Vs Delhi Administration" reported in "AIR 1978 SC P. 675". This is the judgment of a Constitution Bench. The Celebrated Justice Krishna Iyer begins the judgment with the following words which are not only instructive but form a soul searching sum up of the conceptualization on the subject of torture and custodial deaths. The following is the extract of the judgment.

"The province of Prison Justice, the conceptualization of freedom behind bars and the role of judicial power as Constitutional sentinel in a prison setting, are of the gravest moment in a world of escalating torture by the minions of State, and in India, where this virgin area of jurisprudence is becoming painfully relevant.

The Preamble as stated above by Justice Krishna Iyer (Justice Desai & Others agreeing with him) laid down the law as follows:

1. It is no more open to debate that person in prisons (under-trials and convicts) are not wholly denuded of the fundamental rights of prisoners. Liberty is, in the very nature of things, circumscribed by the very fact of his confinement.---------------" conviction for a crime does not reduce the person into a non person whose rights are subject to the whim of the prison administration" ----------------- (Paras 53,57 & 212).
2. Justice Krishna Iyer further laid down ---------"the courts must, consciously and deliberately focus their attention to one fundamental fact that it is required to examine the validity of all laws ( including the pre-constitutional laws) in the context of modern reformist theory of punishment; jail being treated as a correctional institution. The necessary concomitants of the facts of incarcerations, is the security of the prison and the safety of the prisoner --------- the court would -------- put in balance the twin objects underlying punitive and preventive incarcerations -------------- The court has, to strike a just balance between dehumanizing prison atmosphere and the perseverance of internal order, discipline---------------- . (Para 213)
3. Answering various contentions made on behalf of the State supporting the powers of the State in dealing with reference to various criminal laws including the Criminal procedure Code Prisons Act and Criminal Amendment Act etc., The Supreme Court led by Justice Krishna Iyer held that no such power was sought to be resorted to as a justification for unbridled power and all such provisions of law purporting to be empowering the authorities are subjective to the Constitutional mandates and limitations.
4. While citing the judgment of Maneka Gandhi’s case "AIR 1978 SC p.597", the Supreme Court held all such laws purporting to give any arbitrary, unjust and omnipotent powers are illegal--------.
5. Lastly the Supreme Court held that the treatment of the prisoners must be in conformity with human dignity and avoid torture reducing the man to the level of a beast.

The next case of a historical importance on the subject is the case of "D.K.Basu Vs State of West Bengal" reported in "AIR 1997 SC P.610". In paragraph 22 of the judgment, Justice Dr.S.A.Anand laid down the law as follows:

"Custodial death is perhaps one of the worst crimes in civilized society governed by the rule of law. The rights inherent in Art. 21 & 22 (1) of Constitution are required to be jealously and scrupulously protected. We cannot whisk away the problem. Any form of torture or cruel, inhuman or degrading treatment would attract Art.21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of Government become law breakers, it is bound to bring contempt for law and will encourage lawlessness and every man would have the tendency to take law unto himself leading to anachronism. No civilized nation can permit that to happen. Does a citizen shed of his fundamental right of life, the moment a police man arrests him? Can the right to live of a citizen be put in abeyance on his arrest? These questions touch the spinal card of the human rights jurisprudence. The answer, indeed, has to be an emphatic ‘No’. The precious right guaranteed by Art.21 of the Constitution of India cannot be denied to convicts, under-trials, detenues and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as permitted by laws.

After quoting several decisions, Supreme Court laid down several rules, mandates, directions addressed to the State and all their subordinates and minions in sub Paras 1 to 11 of paragraph 36 of the judgment which, if followed would have made the society worthy of the lofty declaration made in the Preamble of the Constitution.

The next landmark judgment of the Supreme Court is that of "K.H.Shekarappa Vs State of Karnataka" reported in 2009(17) SCC Page 1.

In paragraph 2 of the judgment Justice Panchal who pronounced the judgment, observed as follows:

Though several Constitutional and Statutory provisions have been enacted to safeguard the personal liberty and life of citizens, incidents of torture and death in the police custodyare ever on the rise. In spite of condemnation of such acts by this Court and the High Courts, certain police officials conduct themselves in a manner resulting into gruesome torture and death of suspects in the police custody. There is no manner of doubt that these are the most heinous crimes committed by persons, who claim to be the protectors of the citizens. What is distressing to note is that the incidents of torture anddeath in the police custody take place under the shield of uniform and authority, in the four walls of a police station or in the lock-up, where the victims are totally helpless.

Lastly we must address ourselves to the question that why in spite of such constitutional mandates in Art.20, 21 & 22 red with Art.14 of the Constitution several judgments of the APEX COURT IN INDIA purporting to protect the right of the citizens from the custodial tortures leading to custodial deaths are still happened. It is because of the basic mis-concept existing in our society and system of law that it is the duty of the police man to bring every person accused of offence to justice resulting in the conviction. It is necessary to understand and realize that the duty of police and law enforcing authorities are only to make a proper, fair and scientific investigation into the crime. It is a matter of common knowledge that many persons (sometime including the victims and the relations of the victims) do not come forward to give evidence. Thereby forcing thepoliceman and other law enforcing authorities to extract confession or other materialleading to the convictions of the persons in custody.

The State and the society must realize the necessity of developing more scientific forensic investigation leading to the correct conclusion (convictions or acquittal as the case may be) avoiding the pressure obligation or duty on the police and other law enforcing authorities to bring the offenders to justice.