Custodial Death:

"Custodial death is one of the worst crimes in a civilised society governed by Rule of Law. Does a citizen shed

off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in

abeyance on his arrest? The answer, indeed, has to be an emphatic "No"" - Supreme Court in D K Basu v

State of West Bengal AIR 1997 SC 610.

Independent investigation in a case of custodial death/torture, at least in the initial stages, is a big problem,

owing to the obvious fact that the police are called upon to probe against themselves. The Supreme Court had

commented about the 'ties of brotherhood' within police, which stall fruitful investigation in cases of custodial

violence, as follows :

"...rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police

personnel would be available. Generally speaking, it would be police officials alone who can only explain the

circumstance in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not

unknown that police personnel prefer to remain silent and more often than not pervert the truth to save their

colleagues" (State of MP vs Shyamsunder Trivedi, 1997).

In many cases, investigation is later handed over to independent agencies like CBI, or Special Investigation

Teams, mostly as a result of cases fought by the relatives of the victims. But such a subsequent transfer of probe

cannot assure concrete results, if the investigation in the initial crucial stages of evidence collection such as

post-mortem, inquest etc., has been manipulated.

To take care of this problem, the law has envisaged a process of parallel Magisterial Inquiry, immediately after

the incident.

This is as per Section 176(1A) of the Code of Criminal Procedure, inserted after 2005 amendment to CrPC.

Section 176(1) CrPC states that a Magistrate, who is empowered to hold inquests with respect to an unnatural

death, may hold an inquiry into the cause of death in addition to the investigation held by the police officer. This

is only a general, empowering provision, giving Magistrate the discretion to hold such an inquiry. Another fact

to be noted is that such inquiry can be held either by an Executive Magistrate or Judicial Magistrate.
On the other hand, Section 176(1A) is a special provision to deal with cases of death, disappearance or rape in

police custody. The provision says that in such cases, the Judicial Magistrate or the Metropolitan Magistrate,

within whose local jurisdiction the offence has been committed, shall hold an inquiry in addition to the inquiry

or investigation held by the police.

The section can be broken down as :

 This inquiry is parallel to the police investigation into custodial death/rape/disappearance.

 This inquiry cannot be done by an Executive Magistrate and must be carried out by a Judicial

Magistrate.

 This inquiry is mandatory(denoted by the use of word "shall" in distinction with the use of word "may"

in Section 176(1)).

Section 176(5), also inserted after 2005 amendment, mandates that the Magistrate holding such inquiry should,

within 24 hours of the death of the person, forward the body with a view to it being examined to the nearest

Civil Surgeon. If it is not possible to do so, reasons must be recorded in writing.

In 1994, the Law Commission of India, after taking note of abysmal rates o conviction in cases of custodial

violence, had recommended the insertion of these provisions - Sections 176(1A) and 176(5) - in its 152nd

report. They were inserted a decade later, as per 2005 amendment.

The National Human Rights Commission has also issued guidelines for Magisterial Enquiry, as per which it

should cover the following aspects.

1. The circumstances of death

2. The manner and sequence of incidents leading to death

3. The cause of death

4. Any person found responsible for the death, or suspicion of foul play that emerges during the enquiry.

5. Act of commission/omission on the part of public servants that contributed to the death

6. Adequacy of medical treatment provided to the deceased.

The NHRC has also set a two month deadline for the completion of enquiry by Magistrate.
Non-compliance of Section 176(1A)

Despite the mandatory nature of this provision, its compliance is highly rare.

In January 2020, the Supreme Court had issued notice on a Public Interest Litigation petition seeking a

directive to all States/UTs for strict implementation of Section 176(1A).

Even in the Jeyaraj-Bennix custodial deaths cases of Sathankulam, Tamil Nadu, the Madras High Court had

to make a suo moto intervention to order enquiry by the Kovilpatti Judicial Magistrate.

Registration of FIR

Registration of FIR in a case of custodial death is mandatory.

The Supreme Court clarified in the decision Lalitakumari vs State of UP (2014) 2 SCC 1 that 'registration of

FIR is mandatory under Section 154 of the Code, if the information discloses commission of a cognizable

offence and no preliminary inquiry is permissible in such a situation'.

Even Section 176(1A) speaks of regular police investigation in cases of custodial death, and the Magisterial

Inquiry is envisaged as in addition to police investigation.

The Law Commission of India had foreseen this problem of police delaying lodging of FIR in cases of custodial

deaths, and had suggested in its 152nd the insertion of a new provision to enable any person to approach a

judicial authority on the failure of police to register FIR.

This was proposed to be inserted Section 154A in the CrPC, reading as follows :

"Section 154A. Notwithstanding anything contained in Section 154 :

(1) Any person (including Legal Aid Centre, or NGO, or any friend or relative) aggrieved by a refusal on the

part of an officer in charge of a police station to record the information referred to in sub-section (1) of that

section in cases relating to custodial offences, may file a petition giving substance of such information :

(a) before the Chief Judicial Magistrate, in case of custodial offences other than those involving death of the

victim, or.
(b) before the Sessions Judge, in cases of custodial offences involving death of the victim.

(2) The Chief Judicial Magistrate or the Sessions Judge, if satisfied, on a preliminary enquiry that there is a

prima facie case, may himself hold enquiry into the complaint or direct some other Judicial Magistrate or

Additional Sessions Judge, as the case may be, to hold enquiry and thereupon direct the ministerial officer of

the Court to make a complaint to the competent court in respect of the offence that may appear to have been

committed.

(3) Notwithstanding anything contained in Section 190 of the Code of Criminal Procedure on a complaint made

under sub-section (2), the competent court shall take cognizance of the offence and try the same.

(4) The Chief Judicial Magistrate or the Sessions Judge may obtain the assistance of any public servant or

authority as they may deem fit in holding the enquiry under sub-section (2)."

The incorporation of this provision, following the recommendations of the Law Commission of India, would

have addressed the problem of delay in lodging FIR by setting off the criminal investigation process through

judicial intervention at the instance of aggrieved persons or public-spirited parties.

Intimation to NHRC

The National Human Rights Commission had issued general instructions in 1993 that within 24 hours of

occurrence of any custodial death, the Commission must be given intimation about it.

All reports including post-mortem, videograph and magisterial inquiry report must be sent within two months of

the incident.

Directions to video record and photograph autopsy proceedings

The NHRC has issued guidelines to all the States to video-film the post-mortem examination in cases of

custodial deaths and send the cassettes to the Commission.

The aim of video-filming and photography of postmortem examination should be:-

i) to record the detailed findings of the post-mortem examination, especially pertaining to marks of injury and

violence which may suggest custodial torture.

ii) to supplement the findings of post-mortem examination (recorded in the postmortem report) by video graphic

evidence so as to rule out any undue influence or suppression of material information.

iii) to facilitate an independent review of the post-mortem examination report at a later stage if required.

The Commission, after ascertaining the views of the States and discussing with the experts in the field and

taking into consideration the U.N. Model Autopsy protocol, has prepared a Model Autopsy Form for custodial

death cases.

Is there need for sanction under Section 197 CrPC to prosecute police officers accused of custodial

torture?

The Supreme Court, in Devinder Singh and others vs State of Punjab through CBI, held that protection of

sanction under Section 197 CrPc was not available for offences which have no connection with official duties.

In this case, a bench comprising Justices V Gopala Gowda and Arun Mishra upheld the argument of

prosecution that sanction for prosecution was not required in cases of fake encounter and custodial torture.

"Protection of sanction is an assurance to an honest and sincere officer to perform his duty honestly and to the

best of his ability to further public duty. However, authority cannot be camouflaged to commit crime", the bench

said.

The top Court observed that "public servant is not entitled to indulge in criminal activities", and that the

protection under Section 197 CrPC has to be "construed narrowly and in a restricted manner".

"The offence must be directly and reasonably connected with official duty to require sanction. It is no part of

official duty to commit offence", the bench clarified.

The Court added that to claim protection under Section 197 CrPC, it has to be proved that the act was

intrinsically connected with official duties.

"In case the assault made is intrinsically connected with or related to performance of official duties sanction

would be necessary under Section 197 CrPC, but such relation to duty should not be pretended or fanciful

claim", the Court said.

The Law Commission of India, taking note of the fact that the need for sanction under Section 197 CrPC was

raised by accused officers in many cases of custodial torture, had recommended the insertion of an explanation

in the said Section as follows :

"For the avoidance of doubts, it is hereby declared that the provisions of this section do not apply to any offence

committed by a judge or public servant, being an offence against the human body committed in respect of a

person in his custody, nor to any offence constituting an abuse of authority".

But this recommendation made in the 152nd report has not been acted upon.

The SC’s interventions can be noted in Joginder Sing v/s State of Up, 1994 and D K Basu v/s state of West
Bengal, 1997 where guidelines were passed to try and secure two rights in the context of any state action- A
Right to life and right to know. Through it the Court sought to curb the power of arrest and also the arrested
people is made aware of all critical information regarding his arrest and also convoy this to friends and relatives
immediately after taken into custody.

The Supreme Court went even further, and perhaps too far, in the case, Prakash Singh v. Union of India [(2006)
8 SCC 1], where it pushed through new legislation for governing police forces to be passed by States across
India. A key component of the new legislation was a robust setup for accountability that contemplated a
grievance redress mechanism. That it took reportedly 11 years for the State of Tamil Nadu to actually
implement Prakash Singh (a law passed in 2013 but only given effect in 2017), and that several States remain in
contempt of the Supreme Court’s judgment, give some insights into how seriously the issue of police reform
ranks in the scheme of things for governments.
There is a reason why the judiciary is commonly called the weakest branch: All the noble intentions in the world
cannot help transform the mere words of a court order into reality. This needs money and a power of immediate
implementation, neither of which courts have. In fact, the gap between the highest court and the lowly police
officer in India has been demonstrated through studies which show how despite criminal laws being struck
down as unconstitutional, they continue to be enforced in various parts of the country by local police. Rather
than expend energies in only passing more guidelines, constitutional courts must seriously contend with the
concrete cases that come their way and expose how hard it is for a common man to get justice against police
violence, either through compensation claims or prosecutions.

Khwaja Yunus Case 2003: The Maharsthra govt has informed the Bombay HC that despite its order no
departmental or disciplinary inquiry has been conducted against four police officers accused in Khwaja Yunus
case who was arrested by the Powai CID in 2002 following the Ghatkopar Bomb blast. They were suspended in
2002 and one of them resigned in 2007 but again in June 2020 they all were re-instated. On June 12 this year,
Yunus’s mother 72-year-old Asiya Begum sent a contempt notice to Param Bir Singh, Commissioner of Police,
who is also the chairman of the review committee set up for review of the suspension orders of various officers
of the Mumbai Police, to withdraw the revocation of their suspension.
Soon after she filed a petition. But the case is going on.

Despite a suggestion by the Law Commission of India that if a person dies in police custody the burden
should be on the police to show that they are not responsible for it, the law still requires the prosecution
to prove that the police caused the death. India’s political commitment to address torture is symbolised
by its failure to ratify the UN Convention Against Torture, and thereby putting itself in the list of only 19
countries to have not adopted it. The Supreme Court of India has laid down many measures to prevent
torture and fix accountability, but these judgments are rarely followed. Even legislative mandates suffer
the same fate. Besides the usual police investigation into a custodial death, the law mandates an
independent magisterial inquiry. It is perhaps a reflection of our institutional apathy that such inquiries
have happened in only about 20% of custodial deaths. And to top it all, prosecution of police officials for
custodial torture requires the sanction of the government.

The worst thing we can do now is to think of the incidents at the Sattankulam police
station in Tamil Nadu as being perpetrated by a few errant police personnel. There is
an institutional and public culture that breeds, protects and even celebrates this kind
of violence. At the heart of that culture is our proclivity to embrace mob justice in
situations where we feel it is ‘deserved’. And in instances where we are forced to
confront murders such as those of Benicks and Jayaraj, we must acknowledge that
our celebration and tolerance of police brutality is just as much to blame as anything
else. The blood of Benicks and Jayaraj are on all our hands.
As you begin to read this article, we would like you to think of the reactions to the
Hyderabad police killing Chennakesavulu, Mohammed Areef, Naveen and Shiva, in
the ‘Disha’ case. That incident, from December 2019, must surely bring back
memories of collective celebration at ‘justice’ having been executed swiftly. The
showering of petals, the raucous calls for adopting such measures of instant justice,
and our pride in such police officers must still be vivid in our memory.
Now contrast that to the reactions in response to the custodial killings, of Jayaraj and
his son Benicks in Thoothukudi, Tamil Nadu. Celebrities, media platforms,
politicians, Twitter and Facebook users, the general public, all aghast at the brutal
violence inflicted on these two men. Everyone collectively reminding us that we need
to keep our police in check, and that we must not tolerate such abuse of police
powers while lamenting the lack of ‘rule of law’ in our society.
The contrast in the response to these two incidents could not be starker. What lies at
the heart of this contrast? Was it because the four men in Hyderabad were accused
of raping, murdering and burning the body of the victim? It revolted us so much that
we were willing to accept this version of instant (but illegal) justice and trust the
police when they told us that it was indeed these four men who were responsible.
Despite no court having looked into it, we were convinced that they ‘deserved’ to be
killed in that manner for what we believed they had done, conveniently blurring the
lines between our moral judgment and the limits we must place on police power.

In the wake of the horrific incident of custodial deaths of Jeyaraj and

Bennix in Tamil Nadu, Senior Advocate Abishek Manu Singhvi has filed an

application in the Supreme Court seeking revival of the proceedings in the

landmark case D K Basu v State of West Bengal. He has suggested fixing a

time limit of four months for magisterial enquiry under Section 176(1A) of

the Code of Criminal Procedure with respect to custodial violence.

He also prayed for a direction to the Centre to ratify the United Nations

Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment, 1987 and to incorporate those provisions into

domestic law.

Singhvi also suggested that a mandatory direction be issued that the

policemen named in the case be put under suspension pending trial from

the day Judicial Magistrate completes his/her preliminary inquiry and files

the report, unless the preliminary report of the Judicial Magistrate

completely exonerates the police official concerned.

Also, policemen facing inquiry for custodial violence should be dis-entitled

from receiving any gallantry award.

All police stations and prisons shall have CCTV recording and states

should explore the possibility and feasibility of providing

dashboard/personnel cameras for police officials while making any

arrest/detention, he suggested.

All police vehicles must have a dashboard camera and that police officials

conducting an arrest/ detention must be equipped with Body Worn Camera

(BWC) and such recordings must become a part of every case file, he

stated.

Police officials must be given periodic training on human rights, dignity and

constitutional guarantees to ensure the upholding of the rule of law.

He has also sought for a direction that the law laid down by SC in Vineet

Narain v.Union of India (1998) 1 SCC 226 (paragraph 5.5) be modified and

applied to cases of custodial deaths/violence to the effect that if the

decision on the request to grant sanction for prosecution is not taken

within one month then the same shall be treated as deemed sanction.

Singhvi has also advocated the need to bifurcate investigation and law &

order wings of the police force, so that a dedicated and skilled team for

investigation can be developed, which will not be tempted to use third

degree methods to solve crimes.

In 2017, the Central government admitted in the Supreme Court that it was seriously
considering the 273rd Report of the Law Commission that recommended ratification
of the UN Convention against Torture and other Cruel, Inhumane or Degrading
Treatment (CAT). CAT was signed by India, but is yet to be ratified. However,
except for minor discrepancies, the prevalent law in India is adequate and well in
tune with the provisions of CAT.

It is not often that policemen involved in shooting people dead and seeking to cover

up the incident as an armed encounter are convicted for murder. The verdict of the
Sessions Court in Mathura sentencing 11 police personnel, including a DSP, to life

for murdering Raja Man Singh, the head of the princely state of Bharatpur in

Rajasthan, and two of his associates, in 1985, is one such rare instance. While

welcoming this rare blow for accountability and justice, it is inevitable that one must

lament the tardiness of the criminal justice system. Even accounting for the usual or

expected delay in prosecuting police personnel, the 35 years that it took for the case

to complete the trial stage is further evidence that justice moves in slow motion in

this country. There are several long-delayed trials that spanned generations.