Fatal Custody- The Menace of Custodial Deaths, Legal Lapses and Institutional Silence

INTRODUCTION

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 officers to gain promotions.

These third-degree torture or custody torture sometimes also act as the reason for the death of the prisoners, known as the Custodial Deaths of the Prisoners. The custodial death situation is a universal problem and it has been considered as the most cruel form of violation after the heinous crime called Rape. The irony in the statement is that the custodial means guardianship and here the saver is only violating the laws and rules made for the citizen and for their welfare and protection of humankind. The Indian constitution not only safeguards the rights of individual but also, there are provisions for safeguarding of the rights of prisoners, which today is being violated. 

CUSTODIAL VIOLNCE 

Custodial Violence primarily refers to violence in police custody and judicial custody like giving harsh punishments, treating in a inhuman way etc. 

According to Law Commission of India, crime by a public servant against the arrested or a detained person who is in custody amounts to custodial violence.

In the case D.K Basu and Ashok K. Johri v. State of West Bengal and State of U.P, the Hon’ble Court defined custodial torture as “it is done on human being by another human being is essentially an instrument to impose the will of the ‘strong’ over the ‘weak’ in their favour. In present scenario the term torture has become synonymous to darker side of human civilization.”

Custodial deaths are still a major concern despite enormous money and time spent on training and sensitizing police personnel. 

Custodial Violence includes various actions like illegal detention, wrongful arrest, humiliating suspects, extorting information under pressure, and physical, mental and sexual violence. This leads to trauma to the victim or even death of the victim in the custody.

There is a lack of proper training. Sometimes police personnel are low on human rights concept and lack experience in scientific methods in crime investigation of the accused involved

CUSTODIAL DEATH

Custodial Death is a death that occurs when a person is in the custody of law enforcement. It refers to the death of an accused during pre-trial or after conviction. The death is caused by the direct or indirect act of police during the prisoner’s custody. It includes death occurring not only in jail but also on medical or private premises, or in police or other vehicles.

Custodial death is an illegal act, where demising of person takes place and such person is under the custody of police, which may be brought in the occasion of being under trial or police have suspected that such person have committed cognizable and non- bailable offence.

Art 20(3) of the Constitution outrightly provides an individual with the right against self- incrimination.  Thus, in cases where brutality is inflicted to incriminate an individual or to give evidence against themselves, it is a gross violation of fundamental rights. 

There is no specific definition of custodial death as it is not defined anywhere in the Constitutional law or any other penal laws but in the landmark judgment of Nilabati Behera v. State of Odisha, Justice A S Anand opined that, “A custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law”.

Custodial Death can be classified into following three types: 

1. The death occurred in police custody.
2. The death occurred in Judicial custody.
3. The death occurred in the custody of army or paramilitary forces.

Police custody: It means accused or suspected person is kept in the lock up within police station and when accused is arrested by police on the ground which is defined under Section 41 of CrPC, 1973, where police have right to take such accused person into the police custody for 24 hours and from the time of arrest within 24 hours police have to present accused in front of magistrate excluding the time of journey. So during 24 hours police have full power to do interrogation and investigation and find out the actual truth behind the crime and it seems many time such power is use by police in negative way which cause judicial death.

Judicial custody: Judicial custody means when suspect or accused person is kept or lodged in the jail by the order of concerned magistrate under section 167 of CRPC. under the custody of Magistrate not under the custody of police. In simple term, when accused is detained under the purview of judicial magistrate and lodged in jail of central or state prison and under judicial custody police have to seek permission from court for interrogation.

What are the causes of custodial death?

The main aim of Criminal Judicial System is to find out the actual person behind the crime, that’s why police were made so that they provide safeguards and protection to their people and that’s the only reason, they have authority to do interrogation and investigation, so that victim will get justice through court with the help of police in finding out the evidence and when these powers are used in adverse way, then it can be the reason for destruction of mankind and society. Even though people are concerned regarding custodial death, no improvement has been seen in it. People are unaware of their rights and the restrictions imposed on police in matters relating to custody. Causes of custodial deaths are

1. Police Brutality:

1. Excessive use of force by law enforcement officers during apprehension, interrogation, or confinement can lead to tragic outcomes.
2. Excessive power vested by the State in police authorities is one of the most important reasons behind the rise of custodial death.
3. Police authorities often resort to an excessive amount of force.
4. Majority cases of custodial death are covered up in administrative cover-ups.
5. No stringent actions were taken against the individuals in the past, and no precedent has been set so far.

2.  Lack of Training and Accountability: 

Insufficient training and a lack of accountability for officers’ actions may result in misuse of power and negligence.

3. Inadequate Medical Care: 

1. Failure to provide timely and proper medical attention to detainees with pre-existing health conditions can lead to fatal consequences.
2. Doctors conducting health care check-up and post-mortems are pressured by police authorities, making it difficult to perform their medical duties diligently.

4. Torture and Abuse:

1. It refers to the torture of a suspect while under the custody of a law enforcement agency.
2. Instances of physical and psychological abuse in custody have been reported, leading to fatalities
3. The Supreme Court has rejected the notion of custodial torture, citing it as a naked violation of human dignity and degradation.
4. It is an offense punishable by law, but the offender (officer) often does not get punished.

5. Overcrowding and Unhygienic Conditions: 

1. Overcrowded cells and unhygienic facilities contribute to health hazards and increase the risk of custodial deaths.
2. The prison conditions are miserable, and medical facilities offered to inmates are inadequate.
3. Fighting among inmates is frequent and fatal.
4.  Physical agony adds to the mental trauma, severely impacting an inmate’s mindset.

6. Feeling of hatred in the eyes of people in the society as well as police, they never try to understand that accused is still innocent until proved guilty by the court and this negative attitude makes police officers exceed misuse their power.

7. Police use custodial violence to elicit confessions and secrets due to procedural pressures, as sometimes police face pressure to find the criminals to solve the case.

 “Custodial Violence and Death”(1994), a paper was presented by Vadackumchery at the symposium organized by the Indian Society of Victimology in Madras. Opinions were collected from 254 Police Officers. Four thousand two hundred and forty six people were also selected from all walks of life to give their responses on use of torture in Police Custody. Few accused persons were also interviewed. Following were the main findings:

• 78.32% Police officers admitted that the arrested were kept in custody till a confession was obtained from them.

• 63.64 % people from all walks of the life were of the view that investigating officers extort confession from the arrested person even by unfair means.

• 81.5% Police officers admitted that third degree methods were used during interrogation.

• 38.82% accused persons reported that the police took them into custody by ‘Informal’ arrest. 36.18% accused persons reported that they were kept in Custody for more than 24 hours. 81.91% of the accused were produced only after confession of their guilt to the police.

• The study also revealed that the investigating officers employed practically all the methods and techniques to make the suspects plead guilty such as frightening, threatening, physically and mentally torturing while detaining them to obtain a confession.

• 86.67% members of the general public reported that third degree methods were being used by police only against criminals and suspects in crime.

In Munshi Singh v. State of Madhya Pradesh,

The Supreme Court stated that the humanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of the rule of law and administration of the criminal justice system.

AN ALARMING DATA OF CUSTODIAL DEATHS

According to a shocking data of the National Human Rights Commission of India, the number of deaths in police custody witnessed a nearly 60% to 75% increase over the last five years.

As per the report submitted by the Ministry of Home Affairs in the Rajya Sabha on February 2023, the rate of custodial deaths has increased from 100 in 2021 to 175 in 2022, of which Maharashtra ranks the highest of 30 deaths, followed by Gujarat (24), Bihar (18), and Rajasthan (13) [2021-22].

The custodial deaths in these state in the year 2020-21 were: 13 in Maharashtra, 17 in Gujarat, 3 each in Bihar and Rajasthan.

The deaths in Judicial Custody in the year 2019- 2020 was 1,584 which has increased to 1840 in 2020-2021, of which Uttar Pradesh shows the highest deaths of 443. 

The National Record Crime Bureau (NCRB) report of 2020 also presented some statistics related to custodial deaths.

• From 2000 to 2020, 1888 custodial deaths have been reported all around the country. In 893 cases pertaining to custodial deaths, cases were registered against policemen, but only 358 police officers were charge-sheeted and only 26 of the policemen were convicted. 
• While only 26 police personnel were convicted in the last 20 years; the NCRB record tells that 96 personnel were arrested between 2017 to 2020. 
• As per the NCRB record, 69% of deaths in police custody between 2010-2020 occurred due to illness (40%) or suicide (29%). Death caused by Illness and suicide are considered natural causes of death.
• Between 2015-2019, the deaths by suicide were significantly higher. During this period, 36% of death in police custody occurred due to suicide.

Statistics on physical assault have been recorded since 2014 and only in 6% of the total cases; has physical assault by police been observed. 

It becomes extremely difficult to prove the fault of police in cases of custodial deaths because of the tactics employed by them to clear the evidence. Sometimes, even before an arrest is made, the accused is tortured by the police authority which enables the police to claim that the injuries are not caused due to custodial brutality, but have occurred even before the accused came under the custody of the police. ‘Fake encounters’ is a term that is doing rounds in the news in the recent past; it is also a form of custodial death. It is very difficult to establish the liability of the police and to prove them guilty of such offences because when these incidents occur, all the evidence is with the police; so, it becomes next to impossible to prove their malicious and heinous act. 

Custodial violence is recognized as one of the most brutal forms of human rights abuse especially by the person in authority. The Constitution of India guarantees the right to life and liberty to individuals and strictly prohibits any sort of custodial torture to take out confessions from the accused. The Constitution of India calls for the safety of convicts and accused in the police and judicial lock-ups, but the authorities such as the police undermine such constitutional structures and carry out custodial violence and torture.

Laws governing custody of accused person and proceedingds

1. The Constitution of India

1. Article 20. Protection in respect of conviction of offences. –  

Article 20 of the Constitution of India provides vital safeguards to individuals in criminal proceedings. It ensures that no person can be convicted of an offence unless it was a violation of law in force at the time of its commission, and prohibits the imposition of a penalty greater than what was prescribed at that time (protection against ex post facto laws). It also protects individuals from double jeopardy by ensuring that no one is prosecuted and punished more than once for the same offence. Additionally, it guarantees the right against self-incrimination, stating that no accused person shall be compelled to be a witness against themselves. These provisions uphold the principles of fairness, justice, and personal liberty within the Indian legal system.

This stops the authorities from coercing the accused to provide evidence

2. Article 21. Protection of Life and Personal Liberty. – 

The ambit of this article is quite extensive. It states that no person can be deprived of life and liberty except according to the procedure established by law. Hence it guarantees to safeguard against any form of torture, assault, or injury. 

3. Article 22. Protection against arrest and detention. – 

It mandates that no person shall be arrested without being informed of the reasons for their arrest and shall not be denied the right to consult and be defended by a legal practitioner of their choice. Furthermore, it requires that every arrested individual be produced before a magistrate within 24 hours of arrest, excluding the time necessary for the journey, to prevent unlawful detention. These safeguards are designed to uphold personal liberty and ensure due process under the law.

In Joginder Kumar v. State of U.P and others, 1994

In this landmark case, the Court observed that the rights under Articles 21 and 22(1) of the Constitution need to be recognised and must be protected. The Court issued a few guidelines to ensure the protection of these rights. 

• The arrested person should be informed about his or her right by the police officer when the arrested person is brought to the police station.
• An entry needs to be maintained in the register which contains the information about who was informed about the arrest of the accused.
• Articles 21 and 22(1) should be strictly recognised and enforced.
• The Magistrate shall determine whether all the requirements are fulfilled and obeyed by the police authority.

The landmark judgement suggested an important procedural mechanism which could be proved beneficial if it is implemented in the right spirit. The judgement is important in the essence that it recognises the fundamental rights and basic human rights of the individual and provides a way of protecting them. 

2. Bharathiya Nagarik Suraksha Sanhitha, 2023

The Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) which replaced the Code of Criminal Procedure, 1973 (CrPC) consists several provisons to prevent custodial violence and deaths. 

1. Mandatory Videography of Arrest and Interrogation (Section 37 BNSS): Arrests must be recorded through videography, especially when conducted in a sensitive manner or for certain categories of offences. This aims to ensure transparency and accountability during the process.

2. Right to Inform a Person (Section 48 BNSS): The arrested person must be informed of their rights and allowed to inform a friend or relative immediately. Helps in preventing incommunicado detention, a common cause of abuse.

3. Medical Examination of the Accused (Section 51 BNSS): Mandatory medical examination by a registered medical practitioner soon after arrest. This helps document the physical condition of the accused to detect signs of torture or ill-treatment.

4. Production Before Magistrate Within 24 Hours (Section 57 BNSS): Reaffirms the constitutional mandate that a person must be produced before a magistrate within 24 hours, excluding travel time. Prolonged illegal detention increases risk of custodial torture, so timely production acts as a safeguard.

5. Magistrate’s Duty to Check for Custodial Abuse (Implied under Section 59 BNSS): When the arrested person is produced, the magistrate has a duty to check for signs of torture or mistreatment, and can order medical examination.

6. Magistrate to inquire into cause of death (Section 196): Section 196 of the Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023 mandates that a Judicial Magistrate must conduct an inquiry into the cause of death when a person dies or goes missing while in police or authorized custody. This inquiry is aimed at ensuring transparency and accountability, and the Magistrate has the authority to record evidence and exercise powers similar to those in criminal investigations. The provision seeks to uphold human rights by providing an independent review of custodial deaths or disappearances, preventing potential abuse of power by law enforcement authorities.

3. Bharatiya Nyaya Sanhitha, 2023

1. Section 101. It is mentioned in exception 3 of Section 101 that if a public servant exceeds the of using force and causes death of any person, he shall be liable for an offence of Culpable Homicide not amounting to Murder.

2. Section 120. This sections punish police officers who resort to violence and torture to obtain confessions and in the process, grave injuries occur to the accused. 

3. Section 198. Public servant disobeying law, with intent to cause injury. – 

“Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both”.

4. Section 201 provides for punishment of a public servant framing an incorrect document with intent to cause injury etc.

5. Section 258 provides punishment to a person with legal authority to confine persons etc. who corruptly or maliciously confines any person, knowing that in doing so he is acting contrary to law.

6. The code also provides for punishments for public officers for sexual violence, assault, and harassment against women in custody.

4. Bharatiya Sakshya Adhiniyam, 2023
5. Section 22. Confession caused by inducement, threat or promise, when irrelevant in criminal proceedings. –

It declares that all the confessions made by the accused by succumbing to the threat, promise or inducement of investigating agencies would not be admissible in the court of law. This Section primarily works for preventing the accused to give confessions against his will.

2. Section 23. Confession to police officer not to be proved. –

It protects to accused from the investigating agencies. Section 23 states that if any confession is made before the police officer, it cannot be used to prove an offence against him. However, it provides a small exception in cases where a custodial statement might lead to the discovery of a new fact.

Clause (2) strictly states that any confession made in custody in the absence of a magistrate would be inadmissible in the court of law. 

5. THE INDIAN POLICE ACT

1.  Section 7 of the Indian Police Act empowers senior police officers to dismiss or suspend a police officer in case the officer has been negligent in discharging the duty.

2. Section 29 contains legal provisions for penalising police personnel for carrying out their duty negligently. The penalty includes imprisonment for up to three months for imprisonment with or without hard labour for a maximum term of three months.

CONCLUSION 

Custodial violence and death in custody are indeed a disgraceful act against humans. It has been used by people in authority to get what they want without considering the immense trauma the victim has to face. Although international bodies and commissions have taken steps to curb this act, we are still far from our goal. In India, even though there are rights available to citizens and specifically for the protection of prisoners, the cases of custodial violence keep on increasing. The Hon’ble Supreme Court has tried to fill the gap by pronouncing landmark judgements and laying down guidelines, but it still doesn’t seem enough to curb this evil. Some ways in which this problem could be solved further could be the enactment of stringent laws, equipping officers with body cameras, physiological-physical-medical tests, and assessments of the investigating officers be undertaken every year, etc.

The statistics presented by NHRC and NCRB reflect horrifying picture of human abuse. It must be changed. The protection that the police officials get from the State despite misusing their power is a big issue. There is a need for monitoring police actions and police officers who act in mala fide must be convicted. A precedent is need to be set to make the authorities realise that they cannot exercise their power beyond their limits. Thus, there is a necessity of the Government to take strict actions against such acts for the protection of weaker sections from authorities who misuse their power.