A Vanish

AVANISH KUMAR MISHRA, LLM.
DISSERTATION, 2019-20
Dr. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY
LUCKNOW
DISSERTATION FOR THE PARTIAL FULFILLMENT OF REQUIREMENTS
FOR
THE AWARD OF THE DEGREE OF MASTER OF LAWS (LL.M.)
"DEATH IN JUDICIAL CUSTODY: A LEGAL STUDY”
UNDER THE SUPERVISION OF MR. SHAIL SHAKYA, ASST. PROF. (LAW)
SUBMITTED TO SUBMITTED BY
Mr. SHAIL SHAKYA Mr. AVANISH KUMAR MISHRA
Assistant Professor in Law Roll No. 184150002
Faculty of Law, DSMNRU Enroll No.: SU1800001459
i
AVANISH KUMAR MISHRA, LLM. DISSERTATION, 2019-20
ACKNOWLEDGEMENTS
ii
I would like to extend my sincere thanks to Mr. SHAIL SHAKYA, ASSISTANT

PROFESSOR IN LAW, FACULTY OF LAW, Dr. SHAKUNTALA MISRA NATIONAL
REHABILITATION UNIVERSITY, LUCKNOW for his guidance and valuable suggestions.
His perpetual attitude of encouraging me towards an insightful study of the topics covered
under this dissertation has tempted me to work sincerely and carefully. His immense
knowledge in law has been the first foundation of all the statements made in the dissertation. I
shall always be indebted to him for his guidance and invaluable help in carrying out the
research work.
I would also like to take the opportunity of acknowledging the assistance of all other ‘Faculty
Members’ at Dr. ShakuntalaMisra National Rehabilitation University, Lucknow; the ‘Staff’ of
DSMNRU and Professors of various other law universities in India & abroad, who have in
some way, helped in carrying out the research work in time. I duly acknowledge hereby,
assistance and contributions of other legal academicians who have been, in any way, a part of
this research work.
I would like to extend my gratitude to my parents, who have always encouraged me to pursue
the research with dedication. I would like to thank God for giving me this opportunity to
undergo research in the esteemed presence of all acknowledged above.
It is to acknowledge that this dissertation research would never have been possible without the
inestimable assistance and contribution of all of the above.
AVANISH KUMAR MISHRA
LL.M. (2019-20)
iii
DECLARATION
iv
It is hereby declared that this dissertation titled, "DEATH IN JUDICIAL CUSTODY: A LEGAL
STUDY" for the award of Master of Law (LL.M.) from faculty of law, Dr. ShakuntalaMisra National
Rehabilitation University, Lucknow has been done in the guidance of SHAIL SHAKYA Assistant
Professor in Law, Dr. ShakuntalaMisra National Rehabilitation University, Lucknow.
It is also declared that all the authorities have been cited with care no part of this dissertation attracts
copyright violation in any from or the other, acknowledgement have been made, wherever necessary to
illustrate references of additional source that have been referred during research.
It is also declared that this dissertation work has not been presented anywhere else for any other purpose,
except to Dr. ShakuntalaMisra National Rehabilitation University, Lucknow for the award of LL.M
degee. The research is original unpublished work by AVANISH KUMAR MISHRA Candidate at
Dr. ShakuntalaMisra National Rehabilitation University, Lucknow
AVANISH KUMAR MISHRA SHAIL SHAKYA
LL.M. (Candidate) Asst. Prof. Law
Roll No. 184150002
Date:
Place: Dr. ShakuntalaMisra National Rehabilitation University, Lucknow
v
CERTIFICATE
vi
This is to certify that this dissertation titled, "DEATH IN JUDICIAL CUSTODY: A LEGAL
STUDY", for the award of Master of Laws (LL.M.) from Dr. ShakuntalaMisra National
Rehabilitation University, Lucknow has been done by Mr. AVANISH KUMAR MISHRA,
Roll No, 184150002 who is a bonafide student of Dr. Shakuntala Misra National Rehabilitation
University, Lucknow for the academic session 2018-2019. It is also certified that the research
has been pursued under the guidance of Mr. SHAIL SHAKYA, Assistant Professor in Law,
Dr. ShakuntalaMisra National Rehabilitation University, Lucknow; and that the research work
has been duly authorized by Faculty of Law, Dr. ShakuntalaMisra National Rehabilitation
University, Lucknow.
Mr. SHAIL SHAKYA
Assistant Professor in Law
Faculty of Law
Dr. ShakuntalaMisra National Rehabilitation University
Lucknow
vii
THE RESEARCH DESIGN
viii
I.] AIMS & OBJECTIVES OF THE RESEARCH
This comprehensive research on “DEATH IN JUDICIAL CUSTODY: A LEGAL STUDY” is

focused on doctrinal study of right to privacy in advancements technology era, materials for
which have been collected from both primary and secondary sources.
The study undertaken examines the cases of custodial crimes. But all kinds of custodies and
cases relating to them could not be undertaken by the researcher. For the purpose of the
qualitative inquiry of present study, cases of custodial crimes were included as part of the study.
Inclusion criteria adopted includes the cases recorded by various agencies such as National
Human Rights Commission, District Crime Records Bureau, local media reported and social
activist referred cases. The exclusion criteria has also been taken into consideration while
focusing on the study. Therefore, alleged custodial violence and fake encounter deaths, false
implications and violence against police are excluded from the present study. In recent years, the
protection of human rights of persons in custodial institutions has emerged as vital issue of
criminal justice. Since, the establishments of National Human Rights Commission and proactive
role played by Supreme Court and various High Courts, the complexity of custodial crimes in
India has been highlighted. The present study focuses on causes, consequences of custodial
violence and critically examines the preventive and remedial measures to mitigate the causative
factors to combat the menace of custodial crimes and strengthens preventive and remedial
measures to rehabilitate the victims of custodial crimes. Descriptive, analytical, informative and
evaluative methods have been adopted to draw inferences and conclusions. This study is
conducted in the various libraries. In order to achieve the objective of the study.
I.] RESEARCH HYPOTHESIS
The Jurisprudence against Custodial Death is in rudimentary stage in India. In spite of the
dynamism and guidelines issued by the Apex Court, the other branches of the government- the
Executive and the Legislature, have failed to achieve the norms set at international level, at some
of the countries and the Supreme Court directives itself.
ix
II.] RESEARCH PROBLEM
The main hypothesis of said research is to analyze the custody death. The study
emphasizes on the condition of prison reform and status of the prisoners in Indian prison.
The study examines the to capture the in-depth understanding to the phenomena of
custodial violence from the point of view of participants, victims, relatives, officials,
academicians etc.. Further it focuses on the norms and conduct which should be followed
by the government and prison department. And finally it will reach over some conclusion
and suggestion regarding above said issue.
III.] RESEARCH METHODOLOGY
Researcher in this dissertation has relied mainly on Doctrinal Method in the research with a
combination of methodology which includes theoretical analysis of the concepts and explains in-
depth of DEATH IN JUDICIAL CUSTODY: A LEGAL STUDY.
IV.] RESEARCH QUESTIONS
Why do police and other governmental agencies use force or violence or torture during
investigation?
What are the laws at national and international level to avoid or to reduce custodial
violence, rape and deaths?
What are the loopholes in the laws?
What is the response or action taken by the judiciary in convicting personnel against
whom complaints have been made?
What more remedial measures may be adopted to curb or eradicate custodial death from
India?
V.] SCOPE & LIMITATIONS OF THE RESEARCH
It remains to consider what are the limitations of this study, is also not free from limitations and
these limitations related with research methodology and challenges faced by researcher as well
strategies adopted to resolve it, has far reaching implications. It would have been appreciable to
x
cover the entire country or at least some of the states to put across the true data on custodial
violence.
However, considering the limited time and due to financial and social constraints, the present
study has restricted its scope only to doctrinal research by taking help of various judgments, law
commission reports, other governmental and non-governmental agencies’ reports and
international treaties by focusing on causes, consequences and preventive measures to curb this
problem without undertaking any systematic surveys, interviews or questionnaires. Due to
absence of a universal definition of custodial violence in India as well as at international level
because of lack of a proper legislation on the subject, some difficulty was faced by the
researcher. The researcher could not go into studying the impact of custodial violence on the
individuals, and their families as meeting with each one of them was not possible. The study of
custodial violence is a difficult domain of research in India as it is time consuming, requires
financial support and because nobody is ready to disclose the reality or the true hardship faced by
them. A very few studies have been conducted either by public institutions/universities or police
research and training institutions based on proper surveys as there is no true and proper account
of the problem.
VI. FOOTNOTING & CITATION
The dissertation contains footnoting and citation as per the Indian law institute (ILI) and blue
book rule. A uniform citation method has been followed throughout the dissertation
xi
TABLE OF CONTENTS
xii
i. Supervisor's Certificate (ii)

ii. Declaration (iii)
iii. Acknowledgement (iv)
iv. List of Abbreviations (v)
v. List of Cases (vi)
vi. Table of Contents (vii)
1. Chapter I : ‘Introductory Note With Respect To Death In
Judicial Custody In India ‘ (1-21)
Introduction
Meaning
Definitions
Historical Background
Dimensions of Custodial Violence
2. Chapter II : ‘Legal status and rights of arrested person's’. (22-46)
Rights of Arrested Person

Right To Silence
Right To Know The Grounds of Arrest
Information Regarding The Right To Be Released On Bail
Right To Be Taken Before A Magistrate Without Delay
Right Of Not Being Detained For More Than 24 Hours Without Judicial Scrutiny
Rights at Trial
Right To Consult A Legal Practitioner
Rights Of Free Legal Aid
Right To Be Examined By A Medical Practitioner
Right Of The Accused To Produce An Evidence
Judicial Pronouncements
Custodial Violence and Indian Constitution
Provisions in Criminal Law
xiii
Legislations Facilitating Custodial Violence

Recent Legal Development
The Prevention Of Torture Bill, 2010
International Documents Against Torture
United Nations Convention Against Torture, 1984
Regional Documents against Torture
3. Chapter III : ‘Overview of atrocities to undertrial prisoners’. (47-59)
Who Is Under-Trials
Classification Of Under-Trials
Position Of Under-Trials
Role of judiciary
4. Chapter IV: Quantitative study of custodial deaths in india. (60-70)
Deaths in judicial custody

Human rights violation
Ground realities
Some fixes
5. Chapter V: ‘Remedies and solutions to custodial deaths’. (71-78)
The Indian police continue to torture suspects in custody as they are rarely punished
Acting with impunity
A historic order
Solutions For The Plight Of Under-Trials
Implementation of DK Basu judgments can protect against custodial torture, death
6. Chapter VI : ‘Conclusion and Suggestions’. (79-100)
Conclusion
Suggestions
Bibliography (101-105)
xiv
LIST OF ABBREVIATIONS
ICCPR - International Covenant on Civil and Political Rights
UDHR - Universal Declaration of Human Rights
ICESCR - International Covenant on Economic Social and Cultural Rights
CEDA - Convention on Elimination of All Forms of discrimination against Women
ICERD - International Convention on Elimination of All Forms of Racial

Discrimination
CRC - Convention on the Rights of the Child
UNCAT - United Nations Conventions against Torture
CPAED - Convention on the protection of rights of All persons against Enforced

disappearance
OPCAT - Optional Protocol of Convention against torture and other cruel, in Human
and Degrading Treatment and Punishment
ICC - The International Criminal Court
CINAT - Coalition of International Non-Governmental Organizations against

Torture.
APT - The Association of Prevention of Torture
IRCT - International Rehabilitation of Victims of Torture.
UNVFT - United Nations Voluntary Fund for victims of Torture.
OMCT - The organization of Medical Centre of Torture
WMA - World Medical Association
WPA - World Psychiatric Association
CID - Criminal Investigation Department
DIA - District Inquiry Authority
DGP - Director General of Police
PADC - Police Act Drafting Committee
xv
NHRC - National Human Rights Commission
ACHR - Asian Centre for Human Rights
LCI - Law Commission of India
PUCL - Peoples Union for Civil Liberties
IMA - Indian Medical Association
ILI - Indian Law Institute
SHO - Station House Officer
AIR - All India Reporter
SCC - Supreme Court Cases
IPC - The Indian Penal Code
Cr.P.C. - Code of Criminal Procedure
TADA - Terrorist and Disruptive Activities (Preventions) Act
POTA - Prevention of Terrorism Act
MOCOCA - Maharastra Control of Organized Crimes Act
xvi
LIST OF CASES
A.K. Gopalan v. State of Madras, A.I.R. 1950 S.c. 27. 230,370

A.K.Roy v. Union of India, A.I.R. 1982 S.c. 710 230
Aeltemesh Rain v. Union of India , A.I.R. 1988 S.C. 1768. 146,
Afzal v. State ofHaryana, (1994)1 S.C.c. 425.
Amolak Ram v Emperor, A.I.R. 1932 Lab 13. 124,
Ani! Yadav v. State ofBihar, A.I.R. 1981 S.C. 1008.
Apparel Export Promotion Council v. A.K. Chopra, 1999(1) S.C.C. 759.
Arvinder Singh Bagga v. State of u.P. , 1994(6) S.C.C. 565.
AshokHussain Allah Dehta v. Asst. Collector of Customs, 1990 Cr. L.J. 2201 (Born.)
Bal Krishna v. Emperor, 33 Cri.L.J. 180.
Bhim Singh v. State of J&K, A.I.R. 1986 S.c. 494.
Chadayam Makki v. State ofKerala, 1980 Cri. L.J. 1195, 1196 (Ker.)
Chaganti Satyanarayana.v. State of A.P, (1986)3 S.C.C.
Challa Ramkonda Reddy v. State, A.I.R. 1989 A.P. 235.
Chandabai v. State ofM.P., 1997 Cri. L.J. 3844
CharanjitKaur v. Union of India 85, (1994(2) S.C.C. 1.
Citizenfor Democracy v. State of Assam, 1996 Cri. L.J.3247.
Collector of Malabar v.Erimmal Ebrahim Hajee, A.I.R. 1957 S.C. 688, p. 691.
Couch v. United States, (1972) 409 V.S. 322, 336.
DJ Vaghela v. Kantibhai Jethabhai, 1985 Cri. L.J. 974 (Guj.).
D.K.Basu v. state of west Bengal, A.I.R. 1997 S.C. 610. 103
Delhi Judicial Service Asson., Tis Hazari Court v. State ofGujarat, A.I.R. 1991.S.C.
2176, 236 Dhananjay Sharma v. State ofHaryana, (1995)(3) S.C.C. 757.
Dharmu Naik v. Rabindranath Acharya, 1978 Cri. L.J. 865 (Ori.).
Digambar Aruk v. Nanda Aruk, A.I.R. 19570ri.
Francis Corellie v. Union Territory of Delhi, 1980 Cri. L.J. 306(S.C.)
Gian Singh v. State, (Delhi Admn.) 1981 Cri .L.J. 100.
Gopi Nath Ghosh v. State of West Bengal, A.I.R. 1984 S.C. 237, 238.)
xvii
Gurbaksh Singh v. State of Punjab, 1980(2) S.C.C. 565

Gurdial Singh v. Emperor, A.I.R. 1932 Lah.
Hans Raj v. State, A.I.R. 1956 All. 641,643.
Har Kishan & State ofHaryana v. Sukhbir Singh, A.I.R. 1988 S.C 2127.
Harbans Singh v. State of u.P., A.I.R. 1991 S.c. 531.
Hussainara Khatoon v. Home Secy. State ofBihar, 1980 S.C.c. (Cri.) 40 Inder Singh v.
State of Punjab, 1994(6) S.C.C. 275. Jai Singh v. Emperor, 33 Cri. L.J. 237, 243.
Janardan v. State ofHyderabad, (1951) S.C.R. 344.
Joginder Kumar v. State ofU.P, 1994 Cri. L.J. 1981.
K.A. Abbas v. Sri Satnarayanna Rao, 1993 Cri. L.J. 2948 (Kant).
Kailash Nath v. Emperor, A.I.R. 1947 All. 436. Kartar Singh v. Sate of Punjab, (1994) 3
S.C.C.
Kasthuri Lal v. State ofU.P., A.I.R. 1965 S.C. 1039. Khatri v. State of Bihar, A.I.R. 1981
S.c. 928.
Khedat Mazdoor Chetna Sangath v. State ofMP.,(1994)6 S.C.C. 260 A.I.R. 1995 S.c. 31
Kishore Singh v. State of Rajasthan, A.I.R. 1981 S.C. 625.
Lalit Babu v. State of Rajasthan, 1997 Cri. L.J. 19.
M. N. Sreedharan v. State of Kerala, 1981 Cri .L.J. 119 (Ker. H.C.).
Maneka Gandhi v. Union of India. A.I.R. 1978 S.C.
Mathura Tukaram v. State ofMaharashtra, A.I.R 1979 S.c.
Mihir Adhikary v. State, 1983 Cri. L.J. (Cal.)
Miranda v. Arizona Mohamad Suleman v. King Emperor, 30 C.W.N. 985, 987 (F.B.)
Moti Bai v. State, 311954 Cr.L.J.(Raj)159l.
Munna v. State ofU.P., A.I.R. 1982 S.C. 806.
Nandini Satpati v. PLDani, A.I.R. 1978 S.C. 1073
Nilabati Behra v. State of Oris sa, A.I.R. 1993 S.C.l960;(1993)2 S.C.c. 746.
Niranjan Singh v. Prabhakar Rajaram, A.I.R. 1980 S.c. 785.
P.Ratnam v. Union of India, 1989 Supp. (2) S.C.C. 714
Pakala Narayana Swami v. Emperor, A.I.R. 1939 P.C.47. 134
People v. Adams, 176, N.Y. 315, 68, N6E. 636 (1903).
xviii
People v. Defore, 242 N.Y. 13,24, 150, N.E. 583, 589 (1926).
People's Unionfor Civil Liberties v. Union of India, 1997 (3) S.C.C. 433.
Peoples Union for Democratic Rights v. State ofBihar, A.I.R. 1987 S.c. 355.
Poovan v. The S.l. of Police, Aroor, 1993 Cr. L.J.2183 (Ker.), p.2186.
xix
CHAPTER-1
INTRODUCTORY NOTE WITH
RESPECT TO DEATH IN JUDICIAL
CUSTODY IN INDIA
1
Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule
of Law. The rights inherent in Articles 21 and 22(1) of the Constitution required to be
jealously and scrupulously protected. The precious right guaranteed by Article 21 of the
Constitution of India cannot be denied to convicted undertrials, detenues and other prisoners
in custody, except according to the procedure established by law by placing such reasonable
restrictions as are permitted by law.
Supreme Court of India in the case of Shri D.K. Basu,Ashok K. Johri vs State Of West
Bengal,State Of U.P on 18 December, 1996
Introduction
Before I put down my views on custodial deaths I would like to quote Alexander the Great that
“If I can love myself despite of my infinite faults, how can I hate anyone at the glimpse of few
faults”. Our constitution has enshrined fundamental rights to guarantee certain basic rights and
liberties to our citizens and several institutes are making a praiseworthy effort to assure the reach
and exercise of such rights by the common man. Such institutes along with NGO’s treat life as a
rope that swings us through hope and always believe that today is better than yesterday and
tomorrow will be better than today. Many NGO’s have contributed tremendously in the sphere of
legal education of people and brought some grave matters to light. Before the National Human
Right Commission complaints of deaths in police lock-ups have been made in large number, and
it has been high on its agenda, the protection of civil liberty.1
Today the society has nearly succumbed to the syndrome of lawless tensions,
psychic penury and miseries of conflict, at individual, domestic, local, national and
international levels. The legal mutiny far from salvaging man is gnawing at him from within.
Incarcerational barbarity has been validated by the popular retributive- deterrent philosophy,
this is current sentencing coin in many criminal jurisdictions.3
It has been observed that in the past decade the toll of deaths in police lock-ups is on the rise.
Many deaths have occurred while in detention but so far no attention has been paid. In India
police lock-ups are solely managed by the police personnel and such incidents are only possible
by their actions. Recently, there was a public uproar in West Bengal against the monstrous acts
1
www.newstrackindia.com/newsdetails/235
2
of the police against the faultless citizens. The Government of India allows torture, so inflicted in
police lock-ups, considering it necessary for the administration of justice while providing
impunity to the law enforcement officers. Principally, it is believed that the court lock-ups be
governed by the judiciary. Although it is seen that even the magistrates are dependent on the
police officials for their judicial functions. The root of all the evil lies in vesting enormous
judicial powers to the police officials. There job begins from the arrest to the conviction of the
arrestee. Revelations brought forth that practically the independence of the Judiciary has not
been observed. This is taken to be contrary to the tenets of the Constitution and goes against the
intention of the Criminal Procedure Code, 1973 that establishes the judiciary to be severed from
other parts of the government.
Taking into account the intensity of the present problem National Human Right Commission has
proposed that in cases of custodial deaths the police officer in-charge must be held responsible
and not the state. This refers to the least applicability of the principle of Vicariou Liability of the
State in cases of Custodial deaths. But if we were to analyse the gravity of the present problem
the doctrine of Vicarious liability should be made applicable.1 The raison d’etre is to provide the
maximum security to those who are the victims in such cases. It is believed that if the liability of
such an act is poured on the State the amount of compensation and relief provided shall be
exemplary which will be in the interest of the one oppressed. The constitution enshrines the right
to life and liberty by Article 21 and empowers the State to guarantee these rights. This is
sufficient to justify the applicability of the principle of vicarious liability of the State in cases of
Custodial deaths where there is covert and overt infringement of the basic rights of life and
liberty of an individual. Article 21 lays down that, “No person shall be deprived of his life or
personal liberty except according to procedure established by law.” But this procedure not only
refers to the enacted law but also extends to the principle of natural justice. The link between
custodial violence and compensation is direct and set at rest any questions regarding the
compensation to be paid for violation of rights in Article 21.2
It should be made sure that the rights of the arrestees is restricted, which does not connote to
violation of one’s rights. The UN Convention against torture and Other Cruel, Inhuman and
Degrading Treatment provides that the human dignity of the arrestees must be maintained.
1
V.R Krishna Iyer : Constitutional Miscellany , 2nd Edn ( 2003) p. 149, 151
2
Nilabati Behra v. State of Orissa (1993) 2 SCC 373; D.K Basu v. State of West Bengal (1997) 1 SCC 416; Rudal Shah
v. State of Bihar (1983) 4 SCC 141.
3
Although our domestic law in this regard is not so effective, we need to mould the domestic law
on the guidelines of international treaties and conventions and together with the necessary
institutional implementation custodial deaths shall diminish.
Moreover, conditions of the police lock-ups will improve and perpetrators will be properly
punished. To ensure justice to the oppressed, the High Court in the case of Mariayappan v State
of Tamil Nadu1, directed to initiate criminal proceeding against the police officials and ordered
State to pay a compensation of 2 lakhs to the family. Custodial deaths invoke the criminal
liability of the officer-in-charge,2 additionally the tortuous liability of the State helps to render
adequate justice in such cases.
There are many other instances of torture and deaths in custody all across the globe. Thailand
and some of the Middle-east countries reveal that severe torture victims are still in custody while
the police torturers remain in posts. Moreover, impunity, forced confessions, inhumane treatment
to the prisoners, denial of due process of rights are some of the maladies. There is an incessant
human rights violation in the prisons of Guantanamo Bay and Abu Gharib by the highest
authorities of U.S, who are in disguise acting as Global Super-Cop. All this has brought the
plague of torture into fore. All around the world the police officials or the authorities, openly or
in disguise inflict pain and torture on the prisoners whether under-trial or not, in the name of
security and state function. Police use torture to extract confessions, for extortions or just to
settle personal scores. The toll of custodial deaths is on a rise according to the figures presented
by the National Human Rights Commission’s annual report which reported complaints of 34
custodial deaths in 1993-1994, increasing to 1297 custodial deaths in 1998-99 and reaching its
peak to a startling figure of 1493 custodial deaths in 2004-2005.
We must adopt a humane tool to reform the crime, criminal, abandon the fanatical superstition
that the State brutality will sensitize the savage into a social member and offer new break
through in crime control consonant with human rights and curative curial compassion.3
There is a daily routine of outcry over the rampant custodial deaths prevalent in the jails of
Jammu and Kashmir. In last five years about 220 personnel were found blameworthy and were
castigated for human rights violations and custodial killings in the state. That is why the situation
1
2000 Cri Lj 4459
2
Moheela Moran v. State of Assam (2000) 2 Gau LT 504; Phoolwati v. NCT of Delhi 2000 Cri. LJ 1613; Ajab Singh v.
State of U.P (2000) 3 SCC 521;Laxman v. State of Rajasthan (2000) 3 Raj. LW 1469
3
V.R Krishna Iyer : Constitutional Miscellany , 2nd Edn (2003) p. 151
4
of inordinate killings in police custody is not new and more than 300 deaths have occurred since
the Muslim insurgency which began in 1989. It was the time when Kashmiri Muslims felt
marginalised by the policies formulated by the Central Government and the mass protests began.
Indian security forces were accused of abominable human rights violations at that time. Large
sections of the police have come to accredit that the only way to perform their role of peace-
keepers and dependable protector of common men is to meet violence against the perpetrators
with all the weaponry at their command. So much so that torture and third degree treatment is
resorted in the ordinary course, not only to make criminals open their mouth but also to make
hostile witnesses reveal details about the wrong doers and many a times coerce innocent men to
confess crimes which they have never committed. Judicial punitivety must be qualified by the
philosophy of reform and not retribution and stern preventions must be made for inflictions,
sadistically masked as deterrence but actually proving to be counter-productive.1
Many such episodes result in custodial deaths. In the policemen’s ardour to prevent anticipated
violence and ensure justice to the criminals which may not be possible through long drawn out
court cases, they take law in their own hands and eliminate such persons by kidnapping and fake
encounters. Many such allegations pour out from the Kashmir valley and are yet unnoticed. For
years the families of the victims have been running from pillar to post seeking justice for the
victim who was killed in a fake encounter and branded as a foreign national or a ‘Fidayeen’.
On analysing particularly the above figures, in the past decade the number of custodial deaths
and violence reach the courts regularly even as courts have been imposing compensation holding
the state liable for several acts committed by the police or other employees. In Moheela Moran v.
State of Assam2 , Phoolwati v. NCT of Delhi3, and in other cases of custodial deaths, the court
gave the verdict upholding the applicability of the doctrine of vicarious liability. India is in a
position of relativity and is aiming to evolve the new and flawless concepts of law. It is forming
an admixture of law, a hybrid idea that is complete in every sense. This law brings the essence of
constitutional law in consonance with that of the Tort Law, and helps to strengthen the inherent
sense of natural justice reflected in our evolving legal complex.
Being aware of pathological fall-out of social entropy and poignant primitivism in our One
world, jurists and other officials must harmonize their skills so that homo-sapiens may soulfully
1
V.R Krishna Iyer : Constitutional Miscellany , 2nd (2003) p. 152
2
(2000) 2 Gau LT 504
3
2000 Cr Lj 1613
5
enter into an era of symphony and harmony. 1 Along with the formulation of legislations relating
to prisons, we are in an exigency to shape up the institutional implementation. For the same
NGO’s and other departments must become pro-active and plan to organise surprise visit to
police lock-ups in the Capital and other States to control cases of brutality, torture and monstrous
acts of the officer in-charge. The visits so organised must check whether the prescribed rules and
regulations as also given in the Prison Act 1952 and Prison Rules 1999 were complied with or
not. Whether the name of the arrestee has been entered in the register, whether the person has
undergone a medical examination, conditions of sanitation and hygiene in the lock ups, hospital
setting of penitentiaries and healing hope of rehabilitative techniques fall within the large rubric
of law. Such surprise visits will ensure prevention of any illegal acts of policemen and higher
authorities and will expose if any such activity is carried on. Correspondingly, we must aim to
transform the temperament of the officials in-charge to deal with such situations in a more
humane way. In spite of all reiterated efforts, torture and custodial deaths is the cause of worry.
“Gundas in wardi have lost their vision and losing their vision is worse than losing their sight.”
The perpetrators of crime go scott free since no law in our country is able to resolve the present
problem effectively. It is almost unexpected that justice remains a dream for most of us and the
payment of a small amount of compensation to a few oppressed is posed to be a benevolent act
rather than a piecemeal gesture by a debased system. Social justice at a higher dimension of
penological development can flourish only if a jail milieu and penitential atmosphere is
fashioned where society offers scope for the free expression of the full potential of every human
inmate and for the gradual lessening of their seething psychic aggressiveness and unresolved
inner tensions.2 However, the Constitution stipulates as one of the directive principles of state’s
policy to endeavour to foster respect to international law and treaties which are based on
principles of natural justice which establishes a progressive society in a quantum leap of
creativity and awakened to a high destiny, no longer sick or savage or victim of stress, neurosis
and breakdown. What adds to the fury is a repeated refusal of India to ratify the UN Convention
against torture and other cruel, discriminate and inhumane acts. It is right to say “Accept what
you cannot change, change what you cannot accept”, the present problem is the axis of our
worries.
1
V.R Krishna Iyer : Constitutional Miscellany , 2nd (2003) p. 148
2
V.R Krishna Iyer : Constitutional Miscellany , edi. 2 Eastern Book Company , Lucknow, 2003 p. 152
6
My ardent concern is that the State cannot debase bastilles by zoological bestiality inflicted on
criminals. It is psychiatric nonsense and medical menace to inflict injuries as a healing process. It
is nobly believed that criminals are made and not born, and are curably human and not
irredeemably brutish.
Crimes are the psychotic syndromes and patients suffering from this must be healed by medico-
legal recipes inside prisons where social beings are kindled and not killed. But I will take a stand
that “Why are prisoners still treated as alien in the lay mans land”. Our aim is to strive towards
the goals of creating a just world where avoidable suffering and noxious negativity is extirpated
and plentiful love, concern overflows because every life in this world is painted by God and we
are no one to make anyone’s life colourless. To boost the morale of all those who are travailing
to end continuous human rights violations, Thomas Alva Edison said that, “I will not say that I
failed 1000 times, I will say that I discovered there are 1000 ways which can cause failure.”
We still confide in our police authorities because they are trying fervently to doff the dust off
their coats. They have the courage to lose the sight of the shore and by carrying this attitude
only new oceans can be discovered. Believing in their reiterated efforts it is not far to say that
Kalyug will usher in Ramrajya.
“Seeking Policewaalas efficacious brace but not in a way like old wine in a new bottle”.
1.2 Custodial Violence: Meaning

The term custodial violence has not been defined under any law. It is a combination of two word
custody and violence. The word ‘custody’ implies guardianship and protective care. Even when
applied to indicate arrest or imprisonment, it does not carry any evil symptoms during custody.
In a law dictionary1 the word ‘custody’; has been defined as charge and with regard to a person
in imprisonment: judicial or penal safekeeping. As Per Chamber Dictionary, the condition of
being held by the police, arrest or imprisonment is called ‘custody’2. As Per Legal Glossary3
Dictionary, custody is imprisonment, the detaining of a person by virtue of lawful Power or
authority.
1
P. RamanathaAiyer : The Encyclopedic Law Dictionary with Legal Maxim (1992) : Wadhwa& Company Nagpur,
India
2
Chamber Dictionary: (1983) Allied Publisher p. 330
3
Legal Glossary (1988) Ministry of Law and Justice, Govt. of India
7
Section 167 of the Code of Criminal Procedure speak about two type of custody i.e. police
custody and judicial custody. As per section 167(1) of Cr. P.C., “the magistrate to whom an
accused person is forwarded under this section may whether he has or not has jurisdiction to try
the case, from time to time, authorize the detention of the accused in such custody as he may
think fit. Provided that the magistrate may authorize the detention of the accused person,
otherwise than in the custody of the police, beyond the period of 15 days if he is satisfied that
adequate ground exist for doing so. So as per section 167 (1) of Cr. Pc. 'police custody' can be
granted for a maximum period of fifteen days only' Police custody basically means police
remand for the purpose of interrogation. In law actually a police officer has two occasion to keep
a person in its custody firstly, from the period when he arrest a person till he produce the said
person in the court i.e. first 24 hours of the arrest of accuse. Secondly, when police gets, remand
from court after producing the accuse in the court which can be extend up to a maximum period
fifteen days, thereafter, a person is sent in judicial custody which in general terms means jail or
prison, where an accuse remain in custody till he gets bail or if convicted and sentenced to jail
till the completion of sentence. As per law, ‘custody’ of a person begins when the police arrest
him.
Other type of custody as mentioned earlier is ‘judicial custody’ which means sending a person in
jail or prison. As per section 3 (1) of ‘The Prison Act, 1894’, ‘Prison’ means any jail or place
used permanently or temporarily under the general or special order of a State Government for the
detention of prisoners and include all land and building appurtenant thereto, but does not
include:-
(a) Any place for the confinement of prisoners who are exclusively in the custody of police; or
(b) Any place specially appointed by State Government under section 541 of the old Criminal
Procedure Code, 1882,
(c) Any place, which has been declared by the State Government by general or special order to be
subsidiary jail.
The term ‘violence’ is the state or quality of being violent, excessive unrestraint or unjustified
force, outrage perforate injury. ‘Violence’ in its literal sense has been defined as the use of force
by one person over another so as to cause injury to him. The injury may be physical, mental or
otherwise. The simple definition of violence is behaviour designed to inflict injury on a person or
8
damage to property. Custodial violence is a term, which is used for describing violence
committed against a person by a police authority. Thus, custodial violence can be defined as “an
inhuman trait that springs out of a perverse desire to cause suffering when there is no possibility
of any retaliation; a senseless exhibition of superiority and physical power over the one who is
overpowered.” According to Law Commission of India, crime by a public servant against the
arrested or detained person who is in custody amounts to custodial violence.1 According to Dr. S.
Subramaniam, “Any use of force threat psychological pressure is termed as custodial violence.2
According to Justice B.P. Jeevan Reddy, “Custodial violence includes torture, death, rape and
excessive beating in police custody”. 3
Although, overcrowding, malnutrition, unhygienic conditions and lack of medical care are some
of the factors of death in police and judicial custody, but custodial violence remains the common
cause of deaths in prisons and lock-ups. The custodial violence is a generic term and includes all
and every type of torture, third degree, harassment, brutality, use of force not warranted by law,
etc. custodial violence include illegal detention, arrest which is wrongful or on illegal or on
insufficient grounds using third degree method, on the suspects, humiliating them, using filthy
language, not allowing them to sleep, extorting confession under pressure, padding up of
additional evidence, misuse of the power regarding handcuffing not allowing to meet counsel or
family member to accuse, denial of food etc. However since the torture or third degree in the
most common and prominent form of custodial violence by the police.
The police officials commit an act of violence upon the persons in their custody under the guise
of investigation and interrogation. The heinousness of this crime is that it is committed upon the
citizens by the very person who is considered to be the guardian of the citizens. It is committed
under the shield of uniform and authority within the four walls of Police Station or lock up, the
victim being totally helpless in these circumstances. The protection of an individual from torture
and abuse of power by police and other law enforcing officers is a matter of deep concern in a
free society.
The chances of violence committed by police on persons in its custody are much greater than any
other form of violence. The basic reason behind it is that the victims of such violence are unable
1
S.K. Ghosh: Politics of Violence (1992), Ashish Publishing, Delhi
2
Dr. S. Subramaniam : Human Rights International Challenges (2004), Manas Publications, Delhi (India)
3
Justice B.P. Jeevan Reddy, a paper presented in seminar: “Custodial Crime, An Affront to Human Dignity, Human
Right Year Book 2001, Universal Law Publication Pvt. Ltd., New Delhi, India.
9
to protest against it. The police officers use their official position to manipulate evidences against
themselves. Death in custody is generally not shown on the records of the lock-up and every
effort is made by the police to dispose of the body or to make out a case that the arrested person
died after he was released from jail. Any complaint against torture is not given attention because
of ties of brotherhood. No direct evidence is available to substantiate the charge of torture or
causing hurt resulting into death, as the police lock- up where generally torture or injury is
caused is away from public gaze and the witnesses are either policemen or co-prisoners who are
highly reluctant to appear as prosecution witness due to fear of retaliation by the superior officers
of the police.
However, in spite of the Constitutional and Statutory provisions contained in the Criminal
Procedure Code and the Indian Penal Code aimed at safeguarding personal liberty and life of a
citizen, the growing incidence of torture and deaths in police custody has been disturbing.
Experience shows that the worst violations of human rights take place during the course of
investigation when the police, with a view to securing evidence or confessions, often resort to
third-degree methods including torture and techniques of arrests by either not recording them or
describing the deprivation of liberty merely as "prolonged interrogations". A reading of the
morning newspapers carrying reports of dehumanising torture, assault, rape and death in police
custody or other governmental agencies almost every day is, indeed, depressing. The increasing
incidence of torture and death in custody has assumed such alarming proportions that it is
affecting the credibility of the rule of law and the administration of the criminal justice system.
As a result the society rightly feels perturbed. The society’s cry for justice becomes louder.
Any form of torture or cruel, inhuman or degrading treatment, whether it occurs during
investigation, interrogation or otherwise needs the severest condemnation. If the functionaries of
the Government become law-breakers, it is bound to breed contempt for the law and no civilised
nation can permit that to happen. Custodial violence may be both physical and or mental. It may
also consist of gross negligence or deliberate inaction. In a case1, when a person was suffering
from high blood pressure or similar type of disease, almost for which continuous medicine is
essential, and he is not allowed to take medicines the men develop serious health problem or
dies. The Apex Court held it to be a case of custodial violence and the State was made liable for
damages for their gross negligence in protecting the person in custody.
1
Challa Rama Krishna Reddy vs. Stateof Andhra Pradesh – AIR 2000 SC 2083
10
1.3 Definitions Of Torture
Torture, according to the 1984 United Nations Convention against Torture (an advisory measure
of the un general assembly) is defined as, any act by which severe pain or suffering, whether
physical or mental, is intentionally inflicted on a person for such purposes as obtaining from
him, or a third person, information or a confession, punishing him for an act he or a third person
has committed or is suspected of having committed, or intimidating or coercing him or a third
person, or for any reason based on discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or acquiescence of a public official or
other person acting in an official capacity. It does not include pain or suffering arising only
from, inherent in, or incidental to, lawful sanctions. --UN Convention Against Torture1
This definition was restricted to apply only to nations and to government-sponsored torture and
clearly limits the torture to that perpetrated, directly or indirectly, by those acting in an official
capacity. It appears to exclude:
1. torture perpetrated by gangs, hate groups, rebels or terrorists who ignore national or international
mandates;
2. random violence during war; and
3. Punishment allowed by national laws, even if the punishment uses techniques similar to those
used by torturers such as mutilation or whipping when practiced as lawful punishment. Some
professionals in the torture rehabilitation field believe that this definition is too restrictive and
that the definition of politically motivated torture should be broadened to include all acts of
organized violence.2
In 1986, the World Health Organization working group introduced the concept of organized
violence, which was defined as:3
"The inter-human infliction of significant, avoidable pain and suffering by an organized group
according to a declared or implied strategy and/or system of ideas and attitudes”. It comprises
1
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, United Nations, 10
December 1984.
2
James Jaranson, "The Science and Politics of Rehabilitating Torture Survivors in Caring for Victims of Tortur”,
edited by Michael K. Popkin, Amer Psychiatric Pub Inc.1998.
3
Berliner P., Nikkelsen E.M., Bovbjerg, A., Wiking, M (2004); "Psychotherapy treatment of torture survivors."
International Journal of Psychosocial Rehabilitation, pp8, 85-96.
11
any violent action that is unacceptable by general human standards, and relates to the victims’
feelings. Organized violence includes “torture, cruel inhuman or degrading treatment or
punishment” as in Article 5 of the United Nations Universal Declaration of Human Rights
(1984). Imprisonment without trial, mock executions, hostage-taking, or any other form of
violent deprivation of liberty, also falls under the heading of organized violence."1
Tokyo Declaration, 1975
The World Medical Association, in its Tokyo Declaration, 1975, defined "torture" 2 as
"the deliberate, systematic or wanton infliction of physical or mental suffering by one or more
persons, acting alone or on the orders of any authority to force another person to yield
information, to make a confession or for any other reason".
Custodial torture, often known as extra-judicial executions has been on a rise in India especially
between 2002 and 2007. This definition includes torture as part of domestic violence or
ritualistic abuse, as well as in criminal activities. Since 1973 Amnesty International has adopted
the simplest, broadest definition of torture:
"Torture is the systematic and deliberate infliction of acute pain by one person on another, or on
a third person, in order to accomplish the purpose of the former against the will of the latter." 3
According to Major Richard4
Major Richard clarified that torture as First Degree refers to legal arrest and custody. Second
degree refers to illegal arrest and custody. Third degree refers to the physical force used on a
suspect by the police to force him to tell the truth. Our criminal law has progressed beyond doubt
and has laid down the fundamental principles of Criminal Jurisprudence. These principles though
not mentioned in the statutes or the Constitution. The following Principle have been considered
as fundamental to our criminal Jurisprudence:-
A- Accused to be presumed innocent until proved guilty,
B- The burden of Proof on the prosecution to prove the guilty,
1
World Health Organization (WHO); 1986; "The Health Hazards of Organized Violence. Report on a WHO Meeting."
Veldhoven 22–25 April 1986.
2
World Medical Association, Declaration of Tokyo, 1975.
3
Amnesty International, (1973) Torture in the Eighties. USA Edition, Amnesty International Publication
4
Chief of Police for Washington, District of Columbia, USA. He is one of the people credited with coining the
term third degree for police interrogation. Sylvester was the first president of the International Association of
Chiefs of Police (IACP), and "was widely regarded as the father of police professionalism.
http://en.wikipedia.org/wiki/Richard_H._Sylvester
12
C- The prosecution to prove his guilty beyond all reasonable doubt,

D- If any doubt regarding the guilty then the benefit of doubt must go to the accused.
E- The principle of “Let ninety criminal go unpunished, but let no one innocent person suffer”.
In spite of the glorification of these fundamental principles by various Human Rights
Organizations, we can see that many types of Third Degree methods are still in vogue including
the following-
i. Beating
ii. Burning of parts of human body with help of cigarette.
iii. Denying Food, Water and sleep.
iv. Forcing the arrest person to drink urine.
v. Putting ice slabs on naked part of human body.
vi. Suspending the person in head down position by his legs.
vii. Providing electric shock treatment.
viii. Providing hot water bottle treatment.
ix. Forced extraction of teeth and nail.
x. Using of rack as an instrument to stretch the limbs and body.
xi. A thumbscrew, a metal studded vice in which suspect’s thumbs are compressed.
xii. Putting rates and cockroaches inside the trouser of the person with his hand and legs tied down.
xiii. Inserting stick in public zone.
xiv. Plucking hair and moustache.
xv. Making the person crouch.
xvi. Putting psychological impact on the person.
1.4 Historical Perspective
For most of recorded history, capital punishments were often deliberately painful. Severe
historical penalties include the breaking wheel, boiling to death, flaying, disembowelment,
crucifixion, impalement, crushing, stoning, execution by burning, dismemberment, sawing,
scaphism, or necklacing. An example from Archaic Greece is the story of the brazen bull
proposed to Phalaris in the mid 6th century BC. Deliberately painful methods of execution for
severe crimes were taken for granted as part of justice until the development of Humanism in
13
17th century philosophy, and "cruel and unusual punishment" came to be denounced in the
English Bill of Rights of 1689. The Age of Enlightenment in the western world further
developed the idea of universal human rights. The adoption of the Universal Declaration of
Human Rights in 1948 marks the recognition at least nominally of a general ban of torture by all
UN member states. Its effect in practice is limited, however, as the Declaration is not ratified
officially and does not have legally binding character in international law, but is rather
considered part of customary international law.
Greeks and Romans
The ancient Greeks and Romans used torture for interrogation. Until the 2nd century AD, torture
was used only on slaves (with a few exceptions). After this point it began to be extended to all
members of the lower classes. A slave's testimony was admissible only if extracted by torture, on
the assumption that slaves could not be trusted to reveal the truth voluntarily. One of the oldest
methods of torture was crucifixion. Its antiquity is indicated in its wide use by the Phoenicians. It
was employed also by the Scythians, the Greeks, the Romans, the Persians and the
Carthaginians. Notorious mass crucifixions followed the slave rebellion under Spartacus and the
Destruction of Jerusalem in 70 AD. To frighten other slaves from revolting, Crassus crucified
6,000 of Spartacus' men along the Appian Way from Capua to Rome. Prior to crucifixion,
victims were often savagely whipped with barbed metal lashes, to induce exsanguinations
(bleeding to death). This had the effect of weakening the condemned and thus speed up what
could be an inconveniently long execution process.
Over time the conceptual definition of torture has been expanded and remains a major question
for ethics, philosophy, and law, but clearly includes the practices of many subsequent cultures.
Modern scholars find the concept of torture to be compatible with society's concept of Justice
during the time of Jesus Christ. Romans, Jews, Egyptians and many other cultures during that
time included torture as part of their justice system. Romans had crucifixion, Jews had stoning
and Egyptians had desert sun death. All these acts of torture were considered necessary (as to
deter others) or good (as to punish the immoral).
The Catholic Church, when deciding to allow governments to use in the medieval inquisitions
the very methods of torture which they utilized in other criminal procedures, it limited their
14
application to "stop short of danger to life or limb". 1 The modern Church's views regarding
torture have changed drastically which are generally associated with the Enlightenment. Thus,
the Catechism of the Catholic Church (published in 1994) condemns the use of torture as a grave
violation of Human Rights. In No. 2297-2298 it states:
Torture, which uses physical or moral violence to extract confession, punishes the guilty,
frighten opponents, or satisfy hatred is contrary to respect for the person and for human dignity...
In times past, cruel practices were commonly used by legitimate governments to maintain law
and order, often without protest from the Pastors of the Church, who themselves adopted in their
own tribunals the prescriptions of Roman law concerning torture. Regrettable as these facts are,
the Church always taught the duty of clemency and mercy. She forbade clerics to shed blood. In
recent times it has become evident that these cruel practices were neither necessary for public
order, nor in conformity with the legitimate rights of the human person. On the contrary, these
practices led to ones even more degrading. It is necessary to work for their abolition. We must
pray for the victims and their tormentors.
Middle Ages2
Medieval and early modern European courts used torture, depending on the crime of the accused
and his or her social status. Torture was deemed a legitimate means to extract confessions or to
obtain the names of accomplices or other information about a crime. It was permitted by law
only if there was already half-proof against the accused.3 Often, defendants already sentenced to
death would be tortured to force them to disclose the names of accomplices. Torture in the
Medieval Inquisition began in 1252 with a papal bull Ad Extirpandaand ended in 1816 when
another papal bull forbade its use.
Early Modern Period4
During the early modern period, the torture of witches took place. In 1613, Anton Praetorius
described the situation of the prisoners in the dungeons in his book GründlicherBericht Von
1
kocebu.com/v4/20322.pdf
2
http://en.wikipedia.org/wiki/Files:Streckbett.jpg
3
J. Franklin, The Science of Conjecture: Evidence and Probability Before Pascal. Baltimore: Johns Hopkins
University Press, 2001, 26-30
4
http://en.wikipedia.org/wiki/Files_LingChi jpg
15
Zauberey und Zauberern (Thorough Report about Sorcery and Sorcerers). He was one of the
first to protest against all means of torture. In Colonial America, women were sentenced to the
stocks with wooden clips on their tongues or subjected to the "dunking stool" for the gender-
specific crime of talking too much.1 Certain Native American peoples, especially in the area that
later became the eastern half of the United States, engaged in the sacrificial torture of war
captives.2
In the 17th century the number of incidents of judicial torture decreased in many European
regions. Johann Graefe in 1624 published Tribunal Reformation, a case against torture.
CesareBeccaria, an Italian lawyer, published in 1764 "An Essay on Crimes and Punishments", in
which he argued that torture unjustly punished the innocent and should be unnecessary in
proving guilt. Voltaire (1694–1778) also fiercely condemned torture in some of his essays.
While in Egypt in 1798, Napoleon Bonaparte wrote to Major-General Berthier that the barbarous
custom of whipping men suspected of having important secrets to reveal must be abolished. It
has always been recognized that this method of interrogation, by putting men to the torture, is
useless. The wretches say whatever comes into their heads and whatever they think one wants to
believe. Consequently, the Commander-in-Chief forbids the use of a method which is contrary to
reason and humanity.3
European states abolished torture from their statutory law in the late 18th and early 19th
centuries. Sweden and Prussia were the first to do so in 1722 and 1754 respectively; Denmark
abolished torture in 1770, Russia in 1774, Austria in 1776, France in 1780, and the Netherlands
in 1798. Bavaria abolished torture in 1806 and Württemberg in 1809. In Spain the Napoleonic
conquest put an end to torture in 1808. Norway abolished it in 1819 and Portugal in 1826. The
Swiss cantons abolished torture in the first half of the 19th century. 4
Torture in the 16th century
Slow slicing, or death by/of a thousand cuts, was a form of execution used in China from roughly
900 AD till its abolition in 1905. According to apocryphal lore, língchí began when the torturer,
1
Brizendine, Louann, The Female Brain Broadway Books. New York. 2006 pg 36
2
Napoleon Bonaparte,Letters and Documents of Napoleon, Volume I: The Rise to Power, selected and translated by
John Eldred Howard (London: The Cresset Press, 1961), 274.
3
Torture by Edward Peters
4
http://en.wikipedia.org/wiki /Torture#Cite_note-19
16
wielding an extremely sharp knife, began by putting out the eyes, rendering the condemned
incapable of seeing the remainder of the torture and, presumably, adding considerably to the
psychological terror of the procedure. Successive rather minor cuts chopped off ears, nose,
tongue, fingers, toes, and such before proceeding to grosser cuts that removed large collops of
flesh from more sizable parts, e.g., thighs and shoulders. The entire process was said to last three
days, and to total 3,600 cuts. The heavily carved bodies of the deceased were then put on a
parade for a show in the public1.
Impalement was a method of torture and execution whereby a person is pierced with a long
stake. The penetration can be through the sides, from the rectum, or through the mouth. This
method would lead to slow, painful, death. Often, the victim was hoisted into the air after partial
impalement. Gravity and the victim's own struggles would cause him to slide down the pole.
Death could take many days. Impalement was frequently practiced in Asia and Europe
throughout the Middle Ages.2
Recent times
Modern sensibilities have been shaped by a profound reaction to the war crimes and crimes
against humanity committed by the Axis Powers in the Second World War, which have led to a
sweeping international rejection of most if not all aspects of the practice. 3 Even as many states
engage in torture, few wish to be described as doing so, either to their own citizens or to the
international community. A variety of devices bridge this gap, including state denial, "secret
police", "need to know", a denial that given treatments are torturous in nature, appeal to various
laws (national or international), the use of jurisdictional argument and the claim of "overriding
need". Throughout history and today, many states have engaged in torture, albeit unofficially.
According to scholar ErvandAbrahamian, although there were several decades of prohibition of
torture that spread from Europe to most parts of the world, by the 1980s, the taboo against torture
was broken and torture "returned with a vengeance," propelled in part by television and an
opportunity to break political prisoners and broadcast the resulting public recantations of their
political beliefs for "ideological warfare, political mobilization, and the need to win 'hearts and
1
http://wekipedia.org/wiki/tortur#cite_note-29
2
http://wekipedia.org/wiki/tortur#cite_note-30
3
Tortured confessions: prisons and public recantations in modern Iran - Page 3
17
minds.'"1 According to professor Darius Rejali, although dictatorships may have used tortured
"more, and more indiscriminately", it was modern democracies, "the United States, Britain, and
France" who "pioneered and exported techniques that have become the lingua franca of modern
torture: methods that leave no marks."2
Torture has become distressingly common in liberal democracies despite several international
treaties such as the International Covenant on Civil and Political Rightsand the UN Convention
against Torture making torture illegal. Despite such international conventions, torture cases
continue to arise such as the 2004 Abu Ghraib torture and prisoner abuse scandal committed by
military police personnel of the United States Army. The US Constitution and US federal law
prohibits the use of torture, yet such human rights violations occurred. Soldiers involved in the
violations have been tried and sentenced to prison, and additional court cases are pending on
other persons who engaged in such violations. At least one alleged person who engaged in a
violation, an alleged homicide, was granted qualified immunity.
According to the findings of Dr. Christian Davenport of the University of Notre Dame, Professor
William Moore of Florida State University, and David Armstrong of Oxford University during
their torture research, evidence suggests that non-governmental organizations have played the
most determinant factor for stopping torture once it gets started.3 Preliminary research suggests
that it is civil society, not government institutions, that can stop torture once it has begun.
Organizations such as Amnesty International serve to expose widespread human rights violations
and hold the individuals accountable to the international community.
1.5 Dimensons Of Custodial Violence

The incident of custodial death and its increase in numbers has thrown up larger question on the
violation of rule of law and abuses of powers by the police or custodian of law during the
conduct of investigation. Police as a law-enforcing agent for the up-keep of welfare of society
has to perform their duty and it is their duty to find the culprit and arrest and put through the trial
according to the law of the country for the punishment of the culprit. It is their duty to safeguard
1
Darius Rejal;iTorture, American style. The surprising force behind torture: democracies by
2
Davenport, Christian. "Helsinki Commission Hearing".Hearing: "Is It Torture Yet?". US Commission on Security and
Cooperation in Europe.
http://www.csce.gov/index.cfm?Fuseaction=ContentRecords.ViewWitness&ContentRecord_id=907&ContentType
=D&ContentRecordType=D&ParentType=H&CFID=5892559&CFTOKEN=28254175. Retrieved 21 November 2011
3
The Death Penalty: Revenge Is the Mother of Invention
18
the society and individual. In order to bring to book the culprit in a proper forum investigation of
the matter before taking to such forum is essential. Under such circumstance in order to extract
correct information from relatives and near and dear about the suspected person, sometimes these
near and dears are picked-up for questioning and cases are not known where persons are arrested
by the police but no entry of arrest has been made in the register and it is only when the police
decides to produce the person arrested and picked up before the Magistrate they make an entry of
arrest in the register, creating records showing that they have complied with requirement of
production within 24 hours according to the law. Under such situation question of personal
liberty and social security or security of society has to be balanced. Such picking-up for
questioning, though it is not an arrest, affect the liberty of a citizen for the liberty of an individual
is a matter of great constitutional importance in our system of governance 1, for all powers
belongs to the people, and it is entrusted by them to specified institutions and functionaries with
the intention of working out, maintaining and operating a constitutional order.
To any civilized society, there can be no attributes more important than the life and personal
liberty of its member and this is evident from the paramount position given by Courts to Article
21 of the Constitution2, hence infringement and deprivation of personal liberty and threat of the
deprivation of life by the action of State is in most civilized societies regarded serious recourse
by state enforcement agency, for ‘the liberty of the citizen is a priceless freedom sedulously
secured by the Constitution’, even so during the time of emergency in compliance with statutory
formalities which are the vigilant concerned of the Courts3.Their Lordship in State of Bihar V.
Kameshwar Prasad4 states that ‘no member of the executive can interfere with the liberty of a
subject except on the condition that he can support the legality of his action before a court of
justice and it is the tradition of British justice that judges should not shirk from deciding such
issues in the face of the executive. It is the same jurisprudence, which has been adopted in this
country on the basis of which the courts of this country exercise jurisdiction, though our
constitution is very jealous of the concept of personal liberty.
1
Rameshwarlal V. State of Bihar: AIR 1968 SC 1303
2
Kehar Singh V. UOI: AIR 1989 SC 653
3
Sher Mohammad V. State of W. Bengal: AIR 1974 SC 806
4
AIR 1965 SC 575
19
The personal liberty of an individual as enunciated by the Supreme Court of India in the case of
MohamadKarim @ Mohd. Subrati V. State of W. Bengal1 is jealously protected by our
constitution, but this liberty is not absolute and is not to be understood to amount to licence to
indulge in activities, which wrongfully and unjustly deprive the community or the society of
essential services and supplies. The right of the society as a whole is from its very nature, of
much greater importance than that of an individual 2. It is an error to suppose that liberty consists
in a paucity of laws, Justice Mathew in his majority judgement in PrabhuDayalDeorath etc. V.
The District Magistrate of Kamarupand other3, it gave emphasis to the protection of life and
personal liberty as stated in the Article 21of the Constitution of India wherein it has stated that
no person shall be deprived of his life or personal liberty except according to procedures
established by law.
On balancing the security of a community and that of personal security Lord Atkinson observed
in Rex V. Haliday4, ‘however precious the personal liberty of the subject maybe, there is
something for which it maybe, to some extent, sacrificed by legal enactment, namely, national
success in the war, or escape from national plunder or enslavement’. From the above it is seen
that there are conflicting interest as to the security of the society and that of the personal security
and personal liberty. While both are the wheels of the society weight age given to either of one
will give a breakage to the function of the society at the same time an individual is a constituent
of the said society for which alone the society exists. In State of Punjab V. Sukhpal Singh5 the
Hon’ble Supreme Court stated, ‘Social security is no doubt the most important goal of the State
but it is not the only goal of a good society. Libertas omnibus rebus resest.Liberty is an
inestimable thing above price. It would be ironic if in the name of social security we would
sanction the subversion of this liberty or the laws for depriving a citizen of his personal liberty; it
is duty of the courts to see that the procedures are strictly observed’. This judgement concludes
that while social security is a must for the benefits of society at large, the personal liberty of an
individual should not be curtailed or deprived at the cost of the society for a society exists for the
1
AIR 1973 SC 207
2
Mohamed Karim V. State of W. Bengal: AIR 1973 SC 207
3
AIR 1974 SC 183
4
1917 AC 260
5
AIR 1990 SC 231: 1990 Cr. L.J. 584
20
benefits of an individual of which the individual is a constituent component. Hence, it is clear

that while social security is a must for the benefits of society at large, the personal liberty of an
individual should not be curtailed or deprived at the cost of the society for a society exists for the
benefits of an individual.
21
CHAPTER-2
Legal Status
And
22
LEGAL STATUS AND RIGHTS OF ARRESTED PERSON
One of the basic tenets of our legal system is the benefit of the presumption of innocence of the
accused till he is found guilty at the end of a trial on legal evidence. In a democratic society even
the rights of the accused are sacrosanct, though accused of an offence, he does not become a
non-person. Rights of the accused include the rights of the accused at the time of arrest, at the
time of search and seizure, during the process of trial and the like.
The accused in India are afforded certain rights, the most basic of which are found in the Indian
Constitution. The general theory behind these rights is that the government has enormous
resources available to it for the prosecution of individuals, and individuals therefore are entitled
to some protection from misuse of those powers by the government. An accused has certain
rights during the course of any investigation; enquiry or trial of an offence with which he is
charged and he should be protected against arbitrary or illegal arrest. Police have a wide powers
conferred on them to arrest any person under Cognizable offence without going to magistrate, so
Court should be vigilant to see that theses powers are not abused for lightly used for personal
benefits. No arrest can be made on mere suspicion or information. Even private person cannot
follow and arrest a person on the statement of another person, however impeachable it is.
Though the police has been given various powers for facilitating the making of arrests, the
powers are subject to certain restraints. These restraints are primarily provided for the protection
of the interests of the person to be arrested, and also of the society at large. The imposition of the
restraints can be considered, to an extent, as the recognition of the rights of the arrested person.
There are, however, some other provisions which have rather more expressly and directly created
important rights in favour of the arrested person.
In the leading case of Kishore Singh Ravinder Dev v. State of Rajasthan, it was said that the laws
of India i.e. Constitutional, Evidentiary and procedural have made elaborate provisions for
safeguarding the rights of accused with the view to protect his (accused) dignity as a human
23
being and giving him benefits of a just, fair and impartial trail. However in another leading case
of Meneka Gandhi v. Union of India it was interpreted that the procedure adopted by the state
must, therefore, be just, fair and reasonable.
Right To Silence
The ‘right to silence’ is a principle of common law and it means that normally courts or tribunals
of fact should not be invited or encouraged to conclude, by parties or prosecutors, that a suspect
or an accused is guilty merely because he has refused to respond to questions put to him by the
police or by the Court. The Justice Malimath Committee writes about the origin of the right to
silence that “it was essentially the right to refuse to answer and incriminate oneself in the
absence of a proper charge. Not initially, the right to refuse to reply to a proper charge.” The
Justice Malimath Committee’s assumption is that the right to silence is only needed in tyrannical
societies, where anyone can be arbitrarily charged. It assumes that whenever a charge is
“proper”, there is no need for protection of the accused. In this backdrop it becomes necessary to
examine the right to silence and its companion right against self-incrimination. These are the two
aspects of fair trial and therefore cannot be made a subject matter of legislation. Right to fair trial
is the basic premise of all procedural laws. The very prescription of procedure and the evolution
of procedural law have to be understood in the historical context of the anxiety to substitute rule
of men by rule of law. In law any statement or confession made to a police officer is not
admissible. Right to silence is mainly concerned about confession. Breaking of silence by the
accused can be before a magistrate but should be voluntary and without any duress or
inducement. To ensure the truthfulness and reliability of the facts he stated the magistrate is
required to take several precautions. Right to silence and the right against self-incrimination have
been watered down quite considerably by interpretation than by legislation. The defendant if he
so desires can be a witness in his trial. His confession outside the court either to the police officer
or to the magistrate is admissible. He is encouraged to betray his colleagues in crime on promise
of pardon. He is expected to explain every adverse circumstance to the court at the conclusion of
evidence with the court having jurisdiction to draw adverse inference while appreciating the
evidence against him.
The constitution of India guarantees every person right against self incrimination under Article
20 (3) “No person accused of any offense shall be compelled to be a witness against himself”. It
24
is well established that the Right to Silence has been granted to the accused by virtue of the
pronouncement in the case of Nandini Sathpathy vs P.L.Dani, no one can forcibly extract
statements from the accused, who has the right to keep silent during the course of interrogation
(investigation). By the administration of these tests, forcible intrusion into one’s mind is being
restored to, thereby nullifying the validity and legitimacy of the Right to Silence. In 2010 The
Supreme court made narco-analysis, brain mapping and lie detector test as a violation of Article
20(3).
Right To Know The Grounds of Arrest
Firstly, according to Section 50(1) Cr.P.C. “every police officer or other person arresting any
person without warrant shall forthwith communicate to him full particulars of the offence for
which he is arrested or other grounds for such arrest.”
Secondly, when a subordinate officer is deputed by a senior police officer to arrest a person
under Section 55 Cr.P.C., such subordinate officer shall, before making the arrest, notify to the
person to be arrested the substance of the written order given by the senior police officer
specifying the offence or other cause for which the arrest is to be made. Non- compliance with
this provision will render the arrest illegal.
Thirdly, in case of arrest to be made under a warrant, Section 75 Cr.P.C. provides that “the police
officer or other person executing a warrant of arrest shall notify the substance thereof to the
person to be arrested, and if so required, shall show him the warrant.” If the substance of the
warrant is not notified, the arrest would be unlawful.
Indian constitution has also conferred on this right the status of the fundamental right. Article
22(2) of the constitution provides that “no person who is arrested shall be detained in custody
without being informed as soon as may be, of the grounds of such arrest nor shall he be denied
the right to consult, and to be defended by a legal practitioner of his choice.”
The right to be informed of the grounds of arrest is a precious right of the arrested person.
Timely information of the grounds of arrest serves him in many ways. It enables him to move the
proper court for bail, or in appropriate circumstances for a writ of habeas corpus, or to make
expeditious arrangement for his defence.
25
In re, Madhu Limaye the facts were: Madhu Limaye, Member of the Lok Sabha and several
other persons were arrested. Madhu Limaye addressed a petition in the form of a letter to the
Supreme Court under Article 32 mentioning that he along with his companions had been arrested
but had not been communicated the reasons or the grounds for arrest. One of the contentions
raised by Madhu Limaye was that there was a violation of the mandatory provisions of Article 22
(1) of the Constitution. The Supreme Court observed that Article 22 (1) embodies a rule which
has always been regarded as vital and fundamental for safeguarding personal liberty in all legal
systems where the Rule of Law prevails. The court further observed that the two requirements of
Clause (1) of Article 22 are meant to afford the earliest opportunity to the arrested person to
remove any mistake, misapprehension or misunderstanding in the minds of the arresting
authority and, also to know exactly what the accusation against him is so that he can exercise the
second right, namely of consulting a legal practitioner of his choice and to be defended by him.
Whenever that is not done, the petitioner would be entitled to a writ of Habeas Corpus directing
his release. Hence, the Court held that Madhu Limaye and others were entitled to be released on
this ground alone.
It appears reasonable to accept that grounds of the arrest should be communicated to the arrested
person in the language understood by him; otherwise it would not amount to sufficient
compliance with the constitutional requirement. The words “as soon as may be” in Article 22(1)
would means as early as is reasonable in the circumstance of the case, however, the words
“forthwith” in Section 50(1) of the code creates a stricter duty on the part of the police officer
making the arrest and would mean “immediately”.
If the arrest is made by the magistrate without a warrant under Section 44, the case is covered
neither by any of the section 50, 55 and 75 nor by any other provision in the code requiring the
magistrate to communicate the grounds of arrest to the arrested person. The lacuna in the code,
however, will not create any difficulty in practice as the magistrate would still be bound to state
the grounds under Article 22(1) of the Constitution.
The rules emerging from decision such as Joginder Singh v. State of U.P. and D.K. Basu v. State
of West Bengal, have been enacted in Section 50-A making it obligatory on the part of the police
officer not only to inform the friend or relative of the arrested person about his arrest etc. but also
26
to make entry in a register maintained by the police. The magistrate is also under an obligation to
satisfy himself about the compliance of the police in this regard.
Information Regarding The Right To Be Released On Bail
Section 50(2) Cr.P.C. provides that “where a police officer arrests without warrant any person
other than a person accused of a non- bailable offence, he shall inform the person arrested that he
is entitled to be released in bail that he may arrange for sureties on his.” This will certainly be of
help to persons who may not know about their rights to be released on bail in case of bailable
offences. As a consequence, this provision may in some small measures, improve the relations of
the people with the police and reduce discontent against them.
Right To Be Taken Before A Magistrate Without Delay
Whether the arrest is made without warrant by a police officer, or whether the arrest is made
under a warrant by any person, the person making the arrest must bring the arrested person
before a judicial officer without unnecessary delay. It is also provided that the arrested person
should not be confined in any place other than a police station before he is taken to the
magistrate. These matters have been provided in Cr.P.C. under section 56 and 76 which are as
given below:
Person arrested to be taken before Magistrate or officer in charge of police station- A police
officer making an arrest without warrant shall, without unnecessary delay and subject to the
provisions herein contained as to bail, take or send the person arrested before a Magistrate
having jurisdiction in the case, or before the officer in charge of a police station.
Person arrested to be brought before Court without delay- The police officer or other person
executing a warrant of arrest shall (subject to the provisions of section 71 as to security) without
unnecessary delay bring the person arrested before the Court before which he is required by law
to produce such person.
Provided that such delay shall not, in any case, exceed 24 hours exclusive of the time necessary
for the journey from the place of arrest to the Magistrate’s Court.
27
Right Of Not Being Detained For More Than 24 Hours Without Judicial Scrutiny
Whether the arrest is without warrant or under a warrant, the arrested person must be brought
before the magistrate or court within 24 hours. Section 57 provides as follows:
Person arrested not to be detained more than twenty-four hours- No police officer shall detain in
custody a person arrested without warrant for a longer period than under all the circumstances of
the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate
under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from
the place of arrest to the Magistrate’s Court.
This right has been further strengthened by its incorporation in the Constitution as a fundamental
right. Article 22(2) of the Constitution proves that “Every person who is arrested and detained in
custody shall be produced before the nearest magistrate within a period of twenty-four hours of
such arrest excluding the time necessary for the journey from the place of arrest to the court of
the magistrate and no such person shall be detained in custody beyond the said period without
the authority of a magistrate.” In case of arrest under a warrant the proviso to Section 76
provides a similar rule in substance.
The right to be brought before a magistrate within a period of not more than 24 hours of arrest
has been created with a view-
i. To prevent arrest and detention for the purpose of extracting confessions, or as a means of
compelling people to give information;
ii. To prevent police stations being used as though they were prisons- a purpose for which they
are unsuitable;
iii. To afford to an early recourse to a judicial officer independent of the police on all questions
of bail or discharge.
In a case of Khatri(II) v. State of Bihar, the Supreme Court has strongly urged upon the state and
its police authorities to ensure that this constitutional and legal requirement to produce an
arrested person before a Judicial Magistrate within 24 hours of the arrest be scrupulously
observed. This healthy provision enables the magistrate to keep check over the police
28
investigation and it is necessary that the magistrates should try to enforce this requirement and
where it is found disobeyed, come heavily upon the police.
If police officer fails to produce an arrested person before a magistrate within 24 hours of the
arrest, he shall be held guilty of wrongful detention.
In a case of Poovan v. Sub- Inspector of Police it was said that whenever a complaint is received
by a magistrate that a person is arrested within his jurisdiction but has not been produced before
him within 24 hours or a complaint has made to him that a person is being detained within his
jurisdiction beyond 24 hours of his arrest, he can and should call upon the police officer
concerned; to state whether the allegations are true and if so; on what and under whose custody;
he is being so helped. If officer denies the arrest, the magistrate can make an inquiry into the
issue and pass appropriate orders.
Rights at Trial
i. Right To A Fair Trial-
The Constitution under Article 14 guarantees the right to equality before the law. The Code of
Criminal Procedure also provides that for a trial to be fair, it must be an open court trial. This
provision is designed to ensure that convictions are not obtained in secret. In some exceptional
cases the trial may be held in camera. Every accused is entitled to be informed by the court
before taking the evidence that he is entitled to have his case tried by another court and if the
accused subsequently moves such application for transfer of his case to another court the same
must be transferred. However, the accused has no right to select or determine by which other
court the case is to be tried.
ii. Right To A Speedy Trial-
The Constitution provides an accused the right to a speedy trial. Although this right is not
explicitly stated in the constitution, it has been interpreted by the Hon'ble Supreme Court of
India in the judgment of Hussainara Khatoon. This judgment mandates that an investigation in
trial should be held “as expeditiously as possible”. In all summons trials (cases where the
maximum punishment is two years imprisonment) once the accused has been arrested, the
investigation for the trial must be completed within six months or stopped on an order of the
29
Magistrate, unless the Magistrate receives and accepts, with his reasons in writing, that there is
cause to extend the investigation
Right To Consult A Legal Practitioner
Article 22(1) of the Constitution provides that no person who is arrested shall be denied the right
to consult a legal practitioner of his choice. Further, as has been held by the Supreme Court that
state is under a constitutional mandate (implicit in article 21) to provide free legal aid to an
indigent accused person, and the constitutional obligation to provide free legal aid does not arise
only when the trial commences but also attaches when the accused is for the first time produced
before the magistrate, as also when remanded from time to time. It has been held by the Supreme
Court that non- compliance with this requirement and failure to inform the accused of this right
would vitiate the trial. Section 50(3) also provides that any person against whom proceedings are
instituted under the code may of right be defended by a pleader of his choice. The right of an
arrested person to consult his lawyer begins from the moment of his arrest. The consultation with
the lawyer may be in the presence of police officer but not within his hearing.
Rights Of Free Legal Aid
In Khatri(II) v. State of Bihar, the Supreme Court has held that the state is under a constitutional
mandate (implicit in Article 21) to provide free legal aid to an indigent accused person, an and
the constitutional obligation to provide free legal aid does not arise only when the trial
commences but also attaches when the accused is for the first time produced before the
magistrate, as also when remanded from time to time. However this constitutional right of an
indigent accused to get free legal aid may prove to be illusory unless he is promptly and duly
informed about it by the court when he is produced before it. The Supreme Court has therefore
cast a duty on all magistrates and courts to inform the indigent accused about his right to get free
legal aid. The apex court has gone a step further in Suk Das v. Union Territory of Arunachal
Pradesh, wherein it has been categorically laid down that this constitutional right cannot be
denied if the accused failed to apply for it. It s clear that unless refused, failure to provide free
legal aid to an indigent accused would vitiate the trial entailing setting aside of the conviction
and sentence.
30
Right To Be Examined By A Medical Practitioner
Section 54 now renumbered as Section 54(1) provides:
54. Examination of arrested person by medical practitioner at the request of the arrested person
When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is
produced before a Magistrate or at any time during the period of his detention in custody that the
examination of his body will afford evidence which will disprove the commission by him of any
offence or which will establish the commission by any other person of any offence against his
body, the Magistrate shall, if requested by the arrested person so to do direct the examination of
the body of such person by a registered medical practitioner unless the Magistrate considers that
the request is made for the purpose of vexation or delay or for defeating the ends of justice.
Right Of The Accused To Produce An Evidence
The accused even has right to produce witness in his defence in case of police report or private
defence. After the Examination and cross examination of all prosecution witness i.e. after the
completion of the prosecution case the accused shall be called upon to enter upon his defence
and any written statement put in shall be filled with the record. He may even call further for
cross examination. The judge shall go on recording the evidence of prosecution witness till the
prosecution closes its evidence.
The accused in order to test the veracity of the testimony of a prosecution witness has the right to
cross-examine him. Section 138 of Indian Evidence Act, 1872 gives accused has a right to
confront only witnesses. This right ensures that the accused has the opportunity for cross-
examination of the adverse witness. Section 33 of Indian Evidence Act tells when witness is
unavailable at trial, a testimonial statement of the witness maybe dispensed by issuing
commission. The testimony at a formal trial is one example of prior testimonial statements which
can be used as documentary evidence in a subsequent trial.
When in the course of investigation an accused or any other person desiring to make any
statement is brought to a magistrate so that any confession or statement that he may be deposed
to make of his free will is record. Confession statements by accused to the police are absolutely
excluded under Section 25, Evidence Act.
31
Judicial Pronouncements
Joginder Kumar v. State of U.P
In order to have transparency in the accused- police relations the Supreme Court held that right
of arrested person upon request, to have someone informed about his arrest and right to consult
privately with lawyers are inherent in Articles 21 and 22 of the Constitution. The Supreme Court
observed that no arrest can be made because it is lawful for the Police officer to do so. The
existence of the power to arrest is one thing. The justification for the exercise of it is quite
another. The Police Officer must be able to justify the arrest apart from his power to do so.
Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation
and self-esteem of a person. No arrest should be made by Police Officer without a reasonable
satisfaction reached after some investigation as to the genuineness and bona fides of a complaint
and a reasonable belief both as to the person’s complicity and even so as to the need to effect
arrest.
The Supreme Court issued the following requirements:
1. An arrested person being held in custody is entitled, if he so requests, to have one friend,
relative or other person who is known to him or likely to take an interest in his welfare told as far
as practicable that he has been arrested and where is being detained.
2. The Police Officer shall inform the arrested person when he is brought to the police station of
this right.
3. An entry shall be required to be made in the Diary as to who was informed of the arrest.
These protections from power must be held to flow from Articles 21 and 22 (1) and enforced
strictly.
D.K. Basu v. State of W.B
The frequent instances of police atrocities and custodial deaths have promoted the Supreme
Court to have a review of its decisions like Joginder Kumar, Nilabati Behera etc. Therefore, the
Supreme Court issued in the following requirements to be followed in all cases of arrest or
detention till legal provisions are made in that behalf as preventive measures.
32
1. The police personnel carrying out the arrest and handling the interrogation of the arrestee
should bear accurate, visible and clear identification and name tags with their designations. The
particulars of all such police personnel who handle interrogation of the arrestee must be recorded
in a register.
2. That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at
the time of arrest and such memo shall be attested by at least one witness, who may be either a
member of the family of the arrestee or a respectable person of the locality from where the arrest
is made. It shall also be countersigned by the arrestee and shall contain the time and date of
arrest.
3. A person who has been arrested or detained and is being held in custody in a police station or
interrogation centre or other lock-up shall be entitled to have one friend or relative or other
person known to him or having interest in his welfare being informed, as soon as practicable, that
he has been arrested and is being detained at the particular place, unless the attesting witness of
the memo of arrest is himself such a friend or a relative of the arrestee.
4. The time, place of arrest and venue of custody of an arrestee must be notified by the police
where the next friend or relative of the arrestee lives outside the district or town through the
Legal Aid Organization in the District and the police station of the area concerned
telegraphically within a period of 8 to 12 hours after the arrest.
5. The person arrested must be made aware of this right to have someone informed of his arrest
or detention as soon as he is put under arrest or is detained.
6. An entry must be made in the diary at the place of detention regarding the arrest of the person
which shall also disclose the name of the next friend of the person who has been informed of the
arrest and the names and particulars of the police officials in whose custody the arrestee is.
7. The arrestee should, where he so requests, be also examined at the time of his arrest and major
and minor injuries, if any, present on his/her body, must be recorded at that time. The
“Inspection Memo” must be signed both by the arrestee and the police officer effecting the arrest
and its copy provided to the arrestee.
33
8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours
during his detention in custody, by a doctor in the panel of approved doctors appointed by
Director, Health Services of the concerned State or Union Territory. Director, Health Services
should prepare such a panel for all Tehsils and Districts as well.
9. Copies of all the documents including the memo of arrest, referred to above, should be sent to
illaqa Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout
the interrogation.
11. A police control room should be provided at all Districts and State headquarters, where
information regarding the arrest and the place of custody of the arrestee shall be communicated
by the Officer causing the arrest, within 12 hours of effecting the arrest and at the police control
room it should be displayed on a conspicuous notice board.
The Court emphasized that failure to comply with the said requirements shall apart from
rendering the concerned official liable for departmental action, also render him liable to be
punished for contempt of Court and the proceedings for contempt of Court may be instituted in
any High Court of the country, having territorial jurisdiction over the matter. The requirements
flow from Articles 21 and Article 22 (1) of the Constitution and need to be strictly followed. The
requirements are in addition to the constitutional and statutory safeguards and do not detract
from various other directions given by the Courts from time to time in connection with the
safeguarding of the rights and dignity of the arrestee.
It is generally believed that in spite of the various safeguards in the Cr.P.C. as well as the in the
Constitution, the power of arrest given to the police is being misused till this day. It is also
believed that the police often use their position of power to threaten the arrested persons and take
advantage of their office to extort money. There have also been innumerable reports on custodial
violence that lead many to believe that deprivation of basic rights of the arrested persons has
become commonplace nowadays.
The Mallimath Committee in its Report on the reforms in the Criminal Justice System has stated
that the accused has the right to know the rights given to him under law and how to enforce such
34
rights. There have also been criticisms that the police fail to inform the persons arrested of the
charge against them and hence, let the arrested persons flounder in custody, in complete
ignorance of their alleged crimes. This has been attributed to the Colonial nature of our Criminal
Justice System where the duty of arrest was thrust upon the Indian officers while the Britishers
drew up the charge against the accused. Thus, it is entirely possible that the English origins of
the Indian Criminal Justice system may have resulted unwittingly in the rights of the arrested
persons falling through the cracks.
There is imminent need to bring in changes in Criminal Justice Administration so that state
should recognize that its primary duty is not to punish, but to socialize and reform the wrongdoer
and above all it should be clearly understood that socialization is not identical with punishment,
for its comprises prevention, education, care and rehabilitation within the framework of social
defence. Thus, in the end we find that Rule of law regulates the functionary of every organ of the
state machinery, including the agency responsible for conducting prosecution and investigation
which must confine themselves within the four corners of the law.
It is the duty of the police to protect the rights of society. It must be remembered that this society
includes all people, including the arrested. Thus, it is still the police’s duty to protect the rights of
the arrested person. Hence, in light of the discussed provisions, a police officer must make sure
that handcuffs are not used unnecessarily, that the accused is not harassed needlessly, that the
arrested person is made aware of the grounds of his arrest, informed whether he is entitled to bail
and of course, produced before a Magistrate within twenty-four hours of his arrest.
Custodial Violence and Indian Constitution
The legal framework in India both constitutional and statutory contains provisions relating to
safeguards arrest, detention, custodial torture and other crimes in custody. The substantive law
(Indian Penal Code, 1861) provides punishment of a person causing injury, torture or death on
the body of a person in custody. The procedural law (Criminal Procedural Code, 1973 and Indian
Evidence Act, 1872) contains several provisions safeguarding the legal rights of a person in
custody. The Constitutional and the relevant statutory provisions on the subject have been
supplemented by the significant judicial pronouncements. In addition, the Protection of Human
Right Act, 1993 provides institutions of the National and State Human Rights Commissions as
35
well as Human Rights Courts for better protection of human rights of a person in custody. India
has ratified, acceded and singed the International Declarations, Covenants, Conventions and
treaties such as Universal Declaration of Human Rights( UDHR), 1 International Covenant on
Civil and Political Rights ( ICCPR), 2 International Covenant on Economic, Social and Cultural
Right(ICESCR),3 International Convention on the Elimination of All forms of Racial
Discrimination( ICERD)4, Convention on the Elimination of All Forms of Discrimination against
Women( CEDAW),5 Convention on the Right of the Child(CRC)6, Convention against Torture
and Other Cruel, inhuman or Degrading Treatment and Punishment(CAT),7 and the International
Convention on the protection of the Rights of All persons against Enforced Disappearance (
CPAED)8. This apart, the UN Declaration on Basic Principles of Justice for Victims of Crime
and abuse of Power is relevant9.
Article 21 of the Constitution of India provides that no person shall be deprived of his life or
personal liberty except according to procedure established by law. Right to life is a fundamental
right. Right to life does not mean just bare existence it means life full of dignity necessary for
human existence in a society, personal liberty is taken care of by Article 22 which provides that
the arrested person should be informed about the grounds of his arrest and should be produced
within 24 hours of his arrest before magistrate. “Liberty is the most cherished possession of
man.”10
The protection of life and liberty and protection from or against arrest of a citizen are contained
in our constitution. The protection of life and liberty of a citizen includes the person so arrested,
as the person so arrested is also a citizen of India and he is protected by Article 21 of the Indian
constitution and, as much if at all his life and liberty is to be curtailed, it must be according to
Article 21 of the Indian constitution which says that ‘no person shall be deprived of his life or
personal liberty except according to procedure established by law’. The expression personal
1
Adopted on 1948
2
Ratified on 1st November,1961
3
Ratified on 10th April,1979
4
Ratified on 3rd December,1968
5
Singed on 30th July,1981
6
Acceded on 11th December,1992
7
Singed on 8th October,1997
8
Singed on 6th Febuary,2007
9
9. Adopted in 1985
10
KharakSinghV.State of U.P.: AIR 1963 SC 1295: 1963 (2) Cri L J
36
liberty is not limited to bodily restraint or to confinement to prison only as has been illustrated by
Hon’ble Supreme Court in Kharak Singh V. State of U.P1
The Constitution in its part III deals with Fundamental Rights. The prohibitions imposed by
Article 20, 21 and 22 of the Constitution are directly relevant to the criminal process. Article 20
(1) prohibits retrospective operation of penal legislation. Article 20(2) guards against double
jeopardy for the same offence. Article 20(3) provides that no persons accused of any offence
shall be compelled to be a witness against himself. Of course, constitution article protects against
testimonial compulsion on the premise that such compulsion may act as a subtle from of
coercion on the accused. Article 21 of the Constitution provides that no person shall be deprived
of life or personal liberty except according to procedure established by law. The expression “Life
and personal liberty” occurring in the Article has been interpreted to include Constitutional
guarantee against torture, assault or injury against a person arrest and custody. The following are
the illustrative decisions, in Dastagir v. State of Madres2, it was held that Punishment which has
an element of torture is unconstitutional.
In case of Inderjeet v. State of Uttar Pradesh, the Apex Court hold the view that prison
restrictions amounting to torture, pressure or infliction and going beyond what the court
authorities, are unconstitutional further it extended that an under-trial or convicted prisoner
cannot be subjected to physical or mental restraint, which is not warranted by the punishment
awarded by the Court, or which amount to human degradation (SheelaBarse v. State of
Maharashatra3 Article 22(1) and 22(2) of the Constitution are also relevant for the present
purpose because one of their objects is to ensure that certain checks exist in the law to prevent
abuse of power of arrest and detention. Article 22(1) provides that no person who is arrested
shall be detained in custody without being informed as soon as may be, of the ground for such
arrest ,nor shall he be, of the ground s for such arrest, nor shall be de denied the right to consult
and to be defended by legal practiner of the choice. Article 22(2) provides that every person who
is arrested and detained in custody shall be produced before the nearest Magistrate within a
period of 24 hours of such arrest, excluding the time necessary for the journey from the place of
arrest to court of the Magistrate and no such person shall be detained in custody beyond the said
period without the authority of a Magistrate.
1
Ibid
2
AIR 1960 SC 759
3
AIR 1983 SC 378
37
The “Police” figure as Entry 2 in State List in the Seventh Schedule of the Constitution, thereby
making State Government primarily responsible for maintaining public order. In variably, police,
which is a part of the civil administration, is at the forefront in maintaining law and order under
the framework of constitutional governance based on principles of “Sovereign Socialist Secular
Democratic Republic to secure fundamental right of its citizens. In consonance with the idea of
democratic policing, a Code of Conduct for the Police in India was adopted at the Conference of
Inspectors General of Police in 1960 and circulated to all the State Governments.
Provisions in Criminal Law
Consistent with the Constitutional guarantee, the statutory provisions are contained in Indian
Penal Code, 1860, Criminal Procedure Code, 1973 and Indian Evidence Act, 1872 for protection
of a person arrested in connection with the commission of an offence as well as prevention of
custodial commission of crimes in police custody. Punitive Provisions are contained in the Indian
Penal Code which seeks to prevent violation of right of life and personal liberty of a person in
custody. The definition in section 44 of CrPC which defines the expression “ injury” as covering
harm to body , mind and reputation or property. Section 220 of CrPC provides for punishment to
an officer or authority that detains or keeps a person in confinement with the corrupt or a
malicious motive, Section 330 and 331 of CrPC provide for punishment of those who inflict
injury or grievous hurt on a person to extort confession or information in regard to commission
of an offence Section 330 therefore directly makes the torture punishable under the Indian Penal
Code,1860 its Sections 330 and 331 read : Section 330 says, “whoever voluntarily causes hurt
for the purpose of extorting from the sufferer, or any person interested in the sufferer, any
confession or any information which may lead to the detection of an offence or misconduct, or
for the purpose of constraining the sufferer or any person interested in the sufferer to restore or
to cause the restoration of any property or valuable security or to satisfy any claim or demand,
or to give information which may lead to the restoration of any property or valuable security,
shall be punished with imprisonment of either description for a term which may extend to seven
years , and shall also be liable to fine. According to Section 331, “ whoever voluntarily causes
grievous hurt for the purpose of extorting from the sufferer, or any person interested in the
sufferer, any confession or any information which may lead to the detection of an offence or
misconduct, or for the purpose of constraining the sufferer or nay person interested in the
38
sufferer to restore or to cause the restoration of any property or valuable security or to satisfy
any claim or demand, or to give information which may lead to the restoration of any property
or valuable security, shall be punished with imprisonment of either description for a term which
may extend to ten years , and shall also be liable to fine.”
Sections 340 to 348 of the Indian Penal Code constitute a group of sections dealing with
wrongful restraint, and wrongful confinement and their aggravations. Of course, they envisage
that the confinement itself is illegal –an ingredient prominently brought out by the adjective
“wrongful”. Whereas section 348 which provides for punishment to a person who wrongfully
confines any person for extorting any confession etc. The section also punishes extortion
committed to extract information leading to the detection of offence or misconduct. The
relevance of the Code of Criminal Procedure, 1973, various contain provisions intended to
operate as a safeguard against custodial offences ranged from arbitrary arrest detention in
custody to compensation to the victims of custodial abuses. Section 50 of CrPC talks about
ground of thearrest and right to bail. This section has been regarded as mandatory, particularly in
the light to constitutional guarantee, so that non-compliance with the section renders the arrest
and detention illegal Ashen v. The State1.
The arrested person has right to medical examination if he or she a complaint of torture,
maltreatment under section 54, Section 56, 57 and 58 of CrPC related with the action after arrest
is made. Section 56 provides that a police officer making an arrest without warrant shall, without
unnecessary delay and subject to provisions as to bail, send the person arrested before Magistrate
having jurisdiction in the case or before the officer in charge of a police station. By section 57,
no police officer shall detain in custody a person arrested without warrant for longer period than
under all the circumstances of the case is reasonable and such period shall not, in the absence of
a special order of a Magistrate under section 167, exceed 24 hours exclusive of the time
necessary for the journey from a place of arrest to the court of the Magistrate. Provisions of
section 57 are mandatory.
Section 58 provides that officers in charge of police stations shall report to the District
Magistrate or Sub Divisional Magistrate about cases of all persons arrested without warrant,
within the limits of the respective stations, whether such persons have been admitted to bail or
otherwise. Where the arrest of a person under the Code of Criminal Procedure, 1973 is under a
1
1987 Cri. LJ 1750
39
warrant, section 70-81 of the Code become applicable, of which sections 75 and 76 are relevant
for the present purpose. Section 75 deals with notification of substance of warrant and Section 76
provides person arrested to be brought before Court without delay not exceeding 24 hours
exclusive of the time necessary for the journey from the place of arrest to the nearest Magistrate
Court.
An important provision in the area of police custody is contained in section 160(1) of the Code
regarding power of attendance of witnesses. This section of particular importance, in view of the
express prohibition, contained in the proviso, against summoning of women of any age, males
under fifteen years at the place other than their place of residence. The legislative seems to have
taken note of the possibility of abuse of authority if the section is not complied with. Further
taking note of the fact that a person in custody may be subjected to subtle influence to make a
confession, section 163(1) of the Code expressly provides prohibition of inducement of threat or
promise. In case when any person dies while in custody for the police, the law requires a
mandatory enquiry by the Magistrate into the cause of death (Section 176 of Code of Criminal
Proceedings 1973). Indian Evidence Act, 1872 elaborated that wherein confessions made to
Police Officers inadmissible in evidence. Section 25 says: “No confession made to police officer,
shall be proved as against a person accused of any offence”.
Legislations Facilitating Custodial Violence

There is a body of Indian law, which is responsible to an extent for facilitating torture or ill
treatment. In particular, the powers to preventively detain people provided for in the Indian
Constitution involve the suspension of important legal and Constitutional Safeguards and
thereby facilitate torture and cruel, inhuman and degrading treatment of detainees. Clause 3 (b)
of Article 22 of the Indian Constitution excludes those detained under preventive detention
legislation from the right to be informed of the grounds of arrest "as soon as may be", the right to
consult and be defended by a legal practitioner of their choice and to be produced before a
magistrate within 24 hours guaranteed under Article 24. The U. N. Special Reporter on Torture
has noted, "Torture is most frequently practised during incommunicado detention (detention
without access to the outside world). Incommunicado detention should be made illegal and
persons held in incommunicado detention should be released without delay. Legal provisions
should ensure that detainees be given access to legal counsel within 24 hours of detention."
40
Preventive detention Legislation includes the National Security Act, 1980 (which is in force
throughout the country) and numerous state legislations including the Jammu and Kashmir
Public Safety Act, 1985 & the Tamil Nadu "Goondas" Act, 1984. In its report punitive use of
preventive detention legislation in Jammu and Kashmir, which outlined concerns about the P. S.
A., Amnesty International reported that it had been informed of severe torture and ill treatment
of some detainees held under the Act.
TheTerrorist and Disruptive Activities (Prevention) Act, 1987 (TADA), which lapsed in 1995,
was found to have led to widespread use of torture by law enforcement officials. As well as
withdrawing safeguards under article 22 of the Constitution for those suspected of broadly
defined offences of "disruptive activities" and "Terrorist Act" it further safeguards and there by
facilitated the use of torture. Under Sections 25 and 26 of Indian Evidence Act, is made to police
officer are not admissible as evidence. These provisions acknowledge the danger in relying upon
such "confessions" in view of the continuing suspicion that they will be obtained by the Police
resorting to illegal practices including torture. Evidence of the continued use of torture to extract
confession, despite this apparent safeguard reinforces the need for its continuing existence and
rigorous application. However, Section 15 (1) of TADA suspended this safeguard and made
confessions to a police officer of the rank of Superintendent of Police and above admissible in
evidence.
Section 32 of the Prevention of Terrorism Act (POTA), 2000, is similar to Section 15 of TADA.
Before passing of this Act, NHRC expressed its opinion, that, "this would increase the possibility
of coercion and torture in securing confessions and thus be inconsistent with Article 14 (3) of the
International Covenant on Civil and Political rights." Its concerns appear to have been realised
in practice. In Gujarat there have been several allegations made by detainees in Court that
confessions have been extracted forcibly from them. As well as directly facilitating torture by
suspending safeguards for detainees, legislation exists in India which facilitates immunity for
perpetrators of torture and therefore leads to further acts of torture by officials who believe that
they are immune from prosecution.
Sections 45 and 197 of the Cr. P.C. provide protection from prosecution to members of the
Armed Forces and public servants for anything done or purported to be done by them in
discharge of their official duties except after obtaining the consent of the Government. The
immunity provided in Sections of the Cr. P.C. is reflected in state legislation governing Police
41
actions, often in the guise of limitation of time for bringing action. For example, Section 53 of
the Tamil Nadu Police Act 1869, which says that all actions brought for anything done under
provisions of the Act, shall be commenced within three months of the commission of act. The
requirement for sanction in several laws has been employed in many cases in which allegations
of torture in custody have been brought despite strong protests, which argue that torture can
never be to be part of 'official duty'. Acts of torture or ill treatment should never be considered
to be a part of the 'official duty' of the law enforcement officials and therefore the requirement of
prior-sanctions of the government for prosecution of public officials in such cases should never
be invoked. Barriers to prosecution facilitate impunity and ending impunity is a vital step in
preventing torture. All the statutes and laws form a network that will necessarily lead to misuse
by the Police Officers. They create an atmosphere that cannot be controlled. In my submission,
all these laws and provisions should be reviewed with the aim of preventing rather than
facilitating torture and ill treatment.
Recent Legal Development

In recent years Criminal Law ( substantive and procedural law) have been amended deals with
prescribes the duties of the police in arresting offenders, investigation officers and also contains
provisions for their prevention of custodial abuses and punitive provisions to ends of justice.
Rapes in police custody are normally seen as a stigma on the law enforcing agency by the
citizens. Police which is primarily agency for ensuring safety of women, children who were
downtrodden is not forgiven by the society if they themselves get involved in rape cases in police
custody. For custodial rape Indian Penal Code amended section 376 IPC under Criminal Law
(Amendment) Act, 20131, The other relevant provision is that the insertion of a new Section in
1
Punishment for rape.Sec.376.
1. Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished with rigorous
imprisonment of either description for a term which shall not he less than seven years, but which may extend to
imprisonment for life, and shall also be liable to fine.
2. Whoever,
a. being a police officer, commits rape
i. within the limits of the police station to which such police officer is appointed; or
ii. in the premises of any station house; or
iii. on a woman in such police officer's custody or in the custody of a police officer subordinate to
such police officer; or
b. being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public
servant subordinate to such public servant; or
42
Indian Evidence Act, 1872 (Section 114A). This Section lays down that in a prosecution for rape
under sub-Section (2) of Section. 376 of the Indian Penal Code, where sexual intercourse by the
accused is proved and the question is whether it was without the consent of the women alleged to
have been raped and she states in her evidence before the Court that she did not consent, the
Court shall presume that she did not consent.
When any person dies while in custody of the police, the law requires a mandatory enquiry by
the Magistrate into the cause of death under section 176 of Code of Criminal Procedure 1973.
The recent amendment in procedural law through Code of Criminal Procedure (Amendment)
Act, 2005 which amended section-176 of Cr.P.C, 1973 and inserted in its sub-section (1), the
words “ where any person dies while in the custody of the police replaced with a new sub-
section, “(1A) where (a) any person dies or disappears, or (b) rape is alleged to have been
committed on any women while such person or women is in the custody of police or in any other
custody authorized by the Magistrate or the Court, under this Code in addition to the inquiry or
investigation held by the police, an inquiry shall be held by the Judicial Magistrate or the
Metropolitan Magistrate, as case may be, within whose local jurisdiction the offence has been
committed.”
Besides above mentioned developments it is noteworthy to mention here that a compressive Bill
has drafted and introduced in the fourteenth Lok Sabha (Lower House of Parliament) by Shri
Mohan Singh, Member of Parliament. The Custodial Crimes (Prevention, Protection And
c. being a member of the armed forces deployed in an area by the Central or a State Government commits rape
in such area; or
d. being on the management or on the staff of a jail, remand home or other place of custody established by or
under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of
such jail, remand home, place or institution; or
e. being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or
f. being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman,
commits rape on such woman; or
g. commits rape during communal or sectarian violence; or
h. commits rape on a woman knowing her to be pregnant; or
i. commits rape on a woman when she is under sixteen years of age; or
j. commits rape, on a woman incapable of giving consent; or
k. being in a position of control or dominance over a woman, commits rape on such woman; or
l. commits rape on a woman suffering from mental or physical disability; or
m. while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman;
or
n. commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which
shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment
for the remainder of that person's natural life, and shall also be liable to fine.
43
Compensation) Bill -2006 ( Lok Sabha Bill No. 63 Of 2006, 26th July, 2006) seeks to provide
prevention and protection against custodial crimes, for compensation in cases of custodial
offences, for appointment of vigilance Commissioner and District Vigilance Commissioners for
Custodial offences. However, the Bill could not be passed by the Parliament.
The Code of Criminal Procedure (Amendment), Act, 2008 was passed by Parliament and which
provides custodial safeguards for arrestee persons in police custody. The salient features of the
Act are the followings;
1. Curbing the power of arrest
2. Protection of women in custody
3. Victims and Witness Protection
The Prevention Of Torture Bill, 2010
The Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or
Punishment was adopted by the United Nations General Assembly on 9th December,
1975.1India signed the Convention on 14th October, 1997. Ratification of the Convention
requires enabling legislation to reflect the definition and punishment for "torture". Although
some provisions relating to the matter exist in the Indian Penal Code yet they neither define
"torture" as clearly as in Article 1 of the said Convention nor make it a criminal offence as called
for by Article 4 of the said Convention. In the circumstances, it is necessary for the ratification of
the Convention that domestic laws of our country are brought in conformity with the
Convention. This would necessitate either amendment of the existing laws such as Indian Penal
Code or bringing in a new legislation. The matter was examined at length in consultation with
the Law Commission of India and the then Learned Attorney General of India. After considerable
deliberations on the issue, it was decided to bring in stand alone legislation so that the aforesaid
Convention can be ratified. The proposed legislation, inter alia, defines the expression "torture",
provides for punishment to those involved in the incidents of torture and specifies the time limit
for taking cognizance of the offence of torture. Section 3 of the bill defines torture as:
Whoever, being a public servant or being abetted by a public servant or with the consent or
acquiescence of a public servant, intentionally does any act for the purposes to obtain from him
or a third person such information or a confession which causes,—
1
Resolution 3452(XXX)
44
(i) Grievous hurt to any person; or

(ii) Danger to life, limb or health (whether mental or physical) of any person, is said to inflict
torture.
Provided that nothing contained in this section shall apply to any pain, hurt or danger as
aforementioned caused by any act, which is inflicted in accordance with any procedure
established by law or justified by law.
Explanation.— for the purposes of this section, 'public servant' shall, without prejudice to
section 21 of the Indian Penal Code, also include any person acting in his official capacity under
the Central Government or the State Government.
International Documents Against Torture

Preamble to UN Charter states to “reaffirm faith in fundamental human rights, in the dignity and
worth of the human person, in the equal rights of men and women and of nations large and
small”.1 Protecting human rights is the utmost important agenda of every civilised society.
Various international instruments stated here under were drafted with view to serve aforesaid
purpose and to curb torture.
United Nations Convention Against Torture, 1984

Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,
was adopted by UN General Assembly on 10 December 1984 and came into force in 1987.
Article 1 to the convention gives a broad and extensive definition of torture. Article 2(1) imposes
obligation on its parties to take effective measures to prevent torture in territory under
jurisdiction of state concerned. Further, Article2(2) ensures that even in exceptional
circumstance, whether a state of war or a threat of war, internal political instability or any other
1
Ibid, Uttar Pradesh(174); Gujarat(134); Andhra Pradesh (109); West Bengal (98); Tamil Nadu (95); Assam (84);
Karnataka (67); Punjab (57); Madhya Pradesh (55); Haryana
(45);Bihar(44);Kerala(42);Jharkhand(41);Rajasthan(38);Orissa (34); Delhi (30); Chhattisgarh (24); Uttarakhand (20);
Meghalaya (17); Arunachal Pradesh (10); Tripura (8); Jammu and Kashmir (6);Himachal Pradesh (5); Goa,
Chandigarh and Pondicherry (3 each); Manipur, Mizoram and Nagaland (2 each); and Sikkim and Dadra and Nagar
Haveli(1 each)
45
public emergency, cannot be invoked as a justification of torture. Article 10, 11 and 15 of the
Convention provides for protection against custodial torture1.
Regional Documents against Torture

The Inter-American Convention to Prevent and Punish Torture (1987) and European Convention
for Prevention of Torture and Inhuman or Degrading Treatment or Punishment ( 1989) have
given the momentum to the movement at the regional level. At present, 146 countries are party to
the Convention against Torture ( 136 countries ratified and 10 signed the Convention) as well as
46 have countries ratified to its Optional Protocol and 25 signatory countries which have
incorporated the legislative, judicial, administrative and other measures contributed to the
movement at domestic level.
India has signed the Convention against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment on 14 October 1997 but not yet ratified it.
1
Article 10-Each State Party shall ensure that education and information regarding the prohibition against torture
are fully included in the training of law enforcement personnel, civil or military, medical personnel, public officials
and other persons who may be involved in the custody, interrogation or treatment of any individual subjected to
any form of arrest, detention or imprisonment. Each State Party shall include this prohibition in the rules or
instructions issued in regard to the duties and functions of any such persons .Article 11-Each State Party shall keep
under systematic review interrogation rules, instructions, methods and practices as well as arrangements for the
custody and
46
CHAPTER-3
Overview of Atrocities
to Undertrial
Prisoners
47
OVERVIEW OF ATROCITIES TO UNDERTRIAL PRISONERS
The term under-trial Prisoners denotes an unconvicted prisoner i.e. one who has been detained
in prison during investigation, inquiry or trial for the offence he/she is accused to have
committed. Under-trials constitute a significant majority of the prison population that is 67.6%
against the convict’s ratio of 31.5% in India. There are over three lakh persons who are within
prisons as under-trials and presumed to be innocent in the eye of the law. The purpose of
keeping under-trials in the custody is to ensure fair trial so that they cannot be in a position to
influence or induce the witnesses. Long detention of Under-trials causes a number of problems
to the other prisoners and to prison organization as well. A majority of undertrials are poor and
denied bail due to excessive bail security and thus trials take years. Usually, they have no
lawyers, live in pathetic conditions, they do not have access to adequate medical care, and are
likely to be tortured or exploited. The focus of research paper would be to study the statistic
report of NCRB, Haryana prison report, world prison report and role play judiciary to check the
conditions of undertrials and to make the research study useful to public, prisoners, law experts,
police , law students and jail authority by making some valuable suggestion and In order to
achieve this objective doctrinal method of research will be adopted.
Who Is Under-Trials
Generally under trial Prisoner those people who are facing trial in any court and during
the trial are kept in judicial custody in Prison are known as ‘under-trial Prisoners.In simple
terms, Under-trial means an under-trial is one who has been arrested for some crime waiting to
appear before the magistrate. Such person is accused and his or her guilt has not proved yet so
cannot be called convict. Various statutes have also defined under-trial in similar fashion.
According to Section 2 (xiv) ‘Under-trial Prisoner’’ means a person who has been committed to
Prison by Court or competent authority pending trial of a case against him[2].
National Crime Record Bureau Report 2015 defined as Under-trial Prisoners as a person kept in
Prison (judicial custody) while the charges against him being tried.
48
Hence we can say undertrials a person whose trials is pending in court and he is detained either
in police custody or in Prison custody for some purpose
Classification Of Under-Trials
Under-trials can be classified in many categories depending upon the nature of the offences for
which they are arrested. The nature of the trial of the persons arrested for a crime and their
treatment varies with the nature of the offence. Persons committing petty offences are to be
released immediately on bail as a matter of right, but those committing graver offences are more
likely to be commission to custody for the security of public at large. According to the 78 thLaw
Commission Report, there are following three types of under-trial Prisoners who are inmates of
jail[3]:-
Persons being tried for non-bailable offences in respect of which courts have declined to
pass an order for their release on bail[4].
Persons being tried for non-bailable offence, in respect of whom courts have passed order
for bail but who, because of difficulty of finding appropriate surety or because of some
other reasons, do not furnish the bail bond[5].
Persons, who are being tried for bailable offences but who, because of difficulty of
finding appropriate surety or because of some other reasons, do not furnish the bail
bond[6].
Position Of Under-Trials
(i) Position Of Under-Trials In Foreign Countries
Table 3.1
UNDER-TRIALS IN FOREIGN COUNTRIES
FOREIGN COUNTRIES PERCENTAGE OF UNDER-TRIALS
JAPAN 11.0% (MID 2015)
49
TURKEY 14.1 % (01-04-2016)
U.K ENGLAND AND WALES 10.9% (30-06-2016)
SPAIN 12.8% (26-8-2016)
USA 20% (2013)
CANADA 34% (31-03-2016)
FRANCE 28.07%(01-07-2016)
AUSTRALIA 27.04%(30-06-2015)
RUSSIAN FEDERATION 17.08%(01-08-2016)
Source ;World Prison brief[7]
3.2; Position Of Under-Trials In Indian Jails
Under-trials occupy rate in the Prison is considerable higher than that of convicted Prisoners.
Such a high presence of under-trials Prisoners and their continued and varying period of stay
mainly determine the overcrowding of Prisoners in various jail in the states /UTs. The strength of
Prisoners in jail for the year of 2011-15 is as follows, which shows that under-trials Prisoners are
more than convicted
Total number of Under-trials/Convicts as on 31.12.2011[8]
Male Female Total
Convicts 1,23,633 (96.1%) 4,959 (3.9%) 1,28,592 (34.5%)
Undertrials 1,23,633 (96.1%) 4,959 (3.9%) 2,41,200 (64.7%)
50
Detenues : 2,363 (96.4%) 87 (3.6%) 2,450 (0.7%)
Others 640 (93.6%) 44 (6.4%) 684 (0.2%)
Male Female Total
Convicts 1,22,776 (96.1% 5,013 (3.9% 1,27,789 (33.2%
Undertrials 2,43,055 (95.4% 11,802 (4.6% 2,54,857 (66.2%
Detenues : 1,832 (95.3% 90 (4.7% 1,922 (0.5%
Others 521 (91.9% 46 (8.1% 567 (0.1%
Male Female Total
Convicts 1,24,263 (95.9%) 5,345 (4.1%) 1,29,608 (31.5%)
Undertrials 2,65,815 (95.4%) 12,688 (4.6%) 2,78,503 (67.6%)
Detenues : 3,015 (96.9%) 98 (3.1%) 3,113 (0.8%)
Others 711 (92.6%) 57 (7.4%) 568 (0.2%)
51
Male Female Total
Convicts 1,26,114 (95.9%) 5,403 (4.1%) 1,31,517 (31.4%)
Under-trials 2,70,783 (95.7%) 12,096 (4.3%) 2,82,879 (67.6%)
Detenues : 3,156 (97.5%) 81 (2.5%) 3,237 (0.8%)
Others 802 (88.8% ) 101 (11.2%) 903 (0.2%)
Male Female Total
Convicts 1,28,428 (95.7%) 5,740 (4.3%) 1,34,168 (32.0%)
Under-trials 2,70,160 (95.8%) 11,916 (4.2%) 2,82,076 (67.2%)
Detenues : 2,490 (97.2%) 72 (2.8%) 2,562 (0.6%)
Others 711 (87.0%) 106 (13.0%) 817 (0.2%)
Table 3.2 Percentage of convicted and under-trials (2011-2015)
Year Percentage of Convicts Percentage of Under-trials
2011 34.5% 64.7%

2012 33.2% 66.2%
52
2013 31.5% 67.6%

2014 31.4% 67.6%
2015 32% 67.2%
Source; National Crime Record Bureau Report 2016
3.3 Position Of Under-Trials In Haryana Jails
There are 19 jails in Haryana including 3 Central Jails and 16 District Jails. According to latest
report July, 2017 the position of undertrials as following
Table 3.3 Population of undertrial Prisoner up to July 2017[13]
Name of the jail Convicted Foreigner Under-trial Total Total % of

Prisoners Under-trial
Prisoners
AMBALA 436 10 671 1117 60.07%
HISAR 695 01 708 1404 50.4%
CJ HISAR 149 01 411 561 73.26%
ROHTAK 707 0 658 1365 48.20%
KARNAL 951 02 1304 2235 58.34%
GURGAON 831 05 1299 2135 60.84%
BHIWANI 241 0 513 754 68.03%
SIRSA 261 0 516 777 66.4%
SONEPAT 239 03 860 1102 78.03%
53
JIND 247 0 518 765 67.7%
KURUKSHETRA 207 01 352 560 62.85%
NARNAUL 193 0 279 472 59.11%
REWARI 15 0 92 107 85.98%
KAITHAL 229 0 243 472 51.4%
FARIDABAD 977 07 1189 2173 55.4%
YAMUNANAGAR 404 0 382 786 48.60%
PALWAL 6 0 51 57 89.47%
PANIPAT 3 0 45 48 95.7%
JHAJJAR 365 0 560 955 58.63%
Total 7156 30 10650 17837 59.70%
Source official website of Haryana Prison
Thus, now above date show that the numbers of under-trails in jail as double that of convicts and
it has increased every year after making governments incentive and Supreme courts guidelines
But still the situation is not controlled if we compare the Indian statistics to foreign country (sec
table Table ; 3.1-3.2 ) then the position of under-trials in foreign country as compare to India, is
very well , because there is average undertrial prisoner only10 to 20 % If we see the position of
under-trials in Haryana jail (sec the table ; 3.3),there is also similar conditions as to entire
country viz- There is three district where above 85% under-trials and two district where above
54
75% (sec the table ; 3.3). So as compare to statistics its concluded that the indian jail are
overcrowding and this overcrowding affect the health and hygiene, quality of food etc .
Hence the overcrowding has very severe, harmful and dehumanizing impact on the prisoners as
also the institutional environment. It also leads to indiscipline and recidivism and thus hampers
the process of reformation and rehabilitation of prisoners.
Role of judiciary
Supreme court and high courts play a vital role to improve the condition of undertrials in india
and direct the government in so many time to take appropriate measures regarding undertials ,
some important landmarks judgments as following –
Fair procedure
In case of A.K Gopalan v. State of Madras[14]the supreme court of India held that the word “
procedure established by law ”under article 21 of the Indian constitution include fair and
reasonable procedureand not a mere semblance of procedure prescribed by the State for the
deprivation of life or personal liberty of individuals.
Speedy trial
Speedy trial is paramount human right of undertrials which recognize by supreme court in case
of Hussainara khatoonv Home Secretary , State of Bihar.in this case supreme court held that “If
a person is deprived of his liberty under the procedure which is not reasonable fair or just, such
deprivation would be violate of this fundamental right under Article 21. There can be no doubt
about speedy trial and by speedy trial remained reasonably expeditious trial, isn’t integral and
essential part of fundamental right to life and liberty enshrined in Article 21”.And after this
judgement supreme court give some more guidline regarding speedy justice to undertrials in
case of Abdul Rahaman Antulayv R.S Nayak[15]andthose guidelines were reaffirmed by the
Apex Court in P. Rama Chandra Rao v. State of Karnataka[16]
Free legal aid
55
The Under-trial prisoners has a right to get free legal aid under the provisions of law which
made by government and application to the Legal Aid Societies for free legal aid expressing his
financial inability to engage a lawyer for defending his/her case. In the absence of free legal for
poor undertrials having no means to engage a lawyer to defend themselves, the trial procedure
can by no means be termed as fair and just. The Supreme Court in Hussainara Khatoon v.Home
Secretary, State of Bihar[17],held that a procedure which does not make the legal services
available to the accused who is too poor to afford a lawyer, and would have to go through the
trial without legal assistance, cannot be regarded as reasonable, fair and just. The Supreme Court
declared speedy trial as a constituent of legal aid and directed the government to provide free
legal aid service in deserving cases.
InM.H Haskot v.State of Maharashtra [18]Supreme Court held that it is statutory duty of
government or government duty bound to provide free legal Aid service to accused person
Justice V R Krishna Iyer observed that free legal services is an imperative procedural piece of
criminal Justice in India. In Sunil Batra v.Delhi Administration (II)[19]Justice Krishna Iyer
observed that free legal service to the prison programs shall be promoted by professional
organisation recognized by the Court. He recommended that the District Bar Association should
keep a cell for this purpose.
Right to Expression
In case of State of Maharashtra v. Prabhakar Panduranga[20] , the Supreme Court held that the
right to personal liberty under Article 21 includes the right to write a book and get it published
and when this right was exercised by a detune its denial without the authority of law violated
Article 21.
Access to Information and Interview
InFrancies Corale Mullin v. the Administrator, Union Territory of Delhi & others[21], the
Supreme Court explained the ingredients of personal liberty under Article 21. The case arose out
of the rights of a detainee under COFEPOSA to have an interview with his family members and
lawyers. The Supreme Court ruled that the right to life and liberty included his right to live with
56
human dignity and therefore a detainee would be entitled to have interviews with family
members, friends and lawyers without these severe restrictions.
Silence and against Narco-analysis/Polygraph/Brain Mapping Test
InSelvi v. State of Karnataka,[22]the full bench of the Supreme Court headed by K.G.
Balakrishnan, Former C.J.I.; has declared the conducting of Narco-analysis, Polygraph test and
Brain Mapping as unconstitutional and violate of human rights. In order to maintain
harmonization balance between the interest of the accused and of investigative agencies, the
Hon’ble Apex Court laid down some guidelines in para 223 of the judgment which should be
adopted for conducting the `Narcoanalysis technique’ and the `Brain Electrical Activation
Profile’ test. And that guideline and tests use in many cases such as Arushi Talwar murder Case,
Nithari killings Case, Abdul Telagi Case, Abu Salem Case, Pragya Thakur (Bomb blast Case)
etc. being ones which generated lot of public interest
Supreme Court orders prisoners to be freed over trial delays[23]
On September 06 2014the Supreme Court ordered the country’s notoriously overcrowded jails,
to free all prisoners who have served half their maximum term without trial, in a landmark ruling
with potential implications for hundreds of thousands of prisoners. As per the Amnesty
international reports that more than two-thirds of India’s nearly four million prison inmates are
awaiting trial, and many having already spent years in prison.
Conjugal Visits
Right to conjugal visits first time recognize by Punjab and Haryana High Court in Jasvir Singh
Case.[24]In the this case Jasvir Singh &Anr v State of Punjab &Ors(2014)the Punjab and
Haryana High Court has allowed conjugal visits and artificial insemination facility for jail
inmates subject to certain conditions. Ruling that ‘right to life and personal liberty’ guaranteed
by the Constitution under Article 21 which includes the right of convicts or jail inmates to have
conjugal visits and artificial insemination, the Court said the same would be regulated by a
legally established procedure that will be the sole prerogative of the state.
57
To install CCTV camera in all prison
For protection of prisoners right SC in case of D.K Basuv State of W.B on 23 July 2015 held that
the central government and all states, to install CCTV cameras in all the prison and also
directed union territories and all the state governments to set up state human rights commission
and fill up vacancies within 3 months in the commission where there is vacant and must fill up
the vacancies in the state human rights commissions within three months time[25].
Supreme Court guideline to state that start working and implementation Under Trial
Review Committee and 436A of the Cr.P.C
In February2016 , Supreme Court issue some guideline for protection rights and improvement of
the undertrials conditions which which is as following[26]
The Under Trial Review Committee in every district should meet every quarter and the
first such meeting should take place on or before 31st March, 2016. The Secretary of the
District Legal Services Committee should attend each meeting of the Under Trial Review
Committee and follow up the discussions with appropriate steps for the release of
undertrial prisoners and convicts who have undergone their sentence or are entitled to
release because of remission granted to them.
The Under Trial Review Committee should specifically look into aspects pertaining to
effective implementation of Section 436 of the Cr.P.C. and Section 436A of the Cr.P.C. so
that undertrial prisoners are released at the earliest and those who cannot furnish bail
bonds due to their poverty are not subjected to incarceration only for that reason.
The Director General of Police/Inspector General of Police in-charge of prisons should
ensure that there is proper and effective utilization of available funds so that the living
conditions of the prisoners is commensurate with human dignity. This also includes the
issue of their health, hygiene, food, clothing, rehabilitation etc.
5. CONCLUSION AND SUGGESTION
Hence after the analysis of above data and Supreme Court judgments its concluded that the
undertrials position in India is very bad it may be so many reasons.The government and judiciary
58
have also admitted that most of the undertials are poor people and accused of patty offences and
locked away for long times because of that they do not know about their rights and cannot
accessed free legal aid. So today undertrials often remain behind bars for years despite the
provisions of Section 436A of the Code of Criminal Procedure, which came into effect in 2005.
This section mandates the release, on personal bond with or without surety, of undertrial
detainees who have been imprisoned for half the maximum sentence they would have received if
convicted for the offence they are charged with. This section does not apply to those who could
be sentenced to death or life term. But 39% of those charged for crimes under the Indian Penal
Code couldn’t be punished with life term or death penalty, prison statistics 2015 show.There is
some suggestion which should be helpful to reduce the undertrials in Indian jails 1
Implementation of the provisions of Plea bargaining under section 265 A to 265 L of the
Criminal Procedure Code 1973 which have been inserted by Code of Criminal Procedure
(Amendment ) Act 2005;
Remuneration for legal aid lawyers be standardised across the country, more legal aid
lawyers be employed and
A separate reserve of police personnel be employed as escorts for undertrials.
In February,2016 Supreme Court in WRIT PETITION (CIVIL) NO.406/2013 issue some
guideline for protection and to improvement of undertrials prisoners conditions which
must be implemented as soon as possible.
Timing of warrant trial cases must be determine by the government by way of making
amendment incode of criminal procedure
Video conferencing facilities must be extended in all the prison in India
Supreme Court order regarding to install CCTV cameras in all the prisons across the
country must be implemented as soon as possible 2
The Legal Assistance Establishments scheme must be implemented as soon as possible
whichfacilitating easier access to information with regard to the legal services, Justice
Dipak Misra, Judge of Supreme Court of India and Executive Chairman, National Legal
Services Authority has conceived the idea of establishing Legal Assistance
Establishments in all the State Legal Services Authorities on 30 thJune 2017.
1
Assistant professor , Rayat college of law Railmajra Roper (Punjab)
2
Section 2 (zb) of the Punjab Prison and Correctional Services Act, 201
59
CHAPTER-4
QUANTITATIVE STUDY
OF CUSTODIAL DEATHS
IN INDIA
60
QUANTITATIVE STUDY OF CUSTODIAL DEATHS IN INDIA

Deaths in judicial custody
The report notes that 1,671 prisoners have died in 2017 while they were in judicial custody.
These deaths in jails have been broadly classified into natural deaths (1,494) and unnatural
deaths (133). The natural deaths category includes those by illness (1,373) or ageing (121). 348
of these deaths were from heart disease, while 164 were from some type of lung ailment. At least
85 of the natural deaths were caused by the prisoner catching tuberculosis.
The unnatural deaths have been sub-categorised into such as suicide (109), accidental deaths (9),
murder by fellow inmates (5), deaths due to assault by outside elements (5) and a catch-all
“others” (3). The number of unnatural deaths in prisons has increased by 15.7 per cent from 115
in 2015.
During 2017, Uttar Pradesh has reported the highest number of deaths by natural causes at 386.
The state is followed by Punjab (131) and Maharashtra (111).
Deaths in police custody
The “Crime in India” comprises a special chapter that enumerates custodial crimes reported in
the country in 2017.
A total of 100 persons died in police custody that year, with Andhra Pradesh having the highest
number at 27. The most common reason reported for custodial death in 2017 was suicide (37)
followed by death in illness/hospital during treatment (28).
The Times of India noted that 106 people have lost their lives in Maharashtra in police custody
within the four-year period between 2013 and 2017. It was followed by Andhra Pradesh (65),
Gujarat (51), Tamil Nadu (38) and Telangana (12). In 47 of the 106 incidents from Maharashtra,
a magisterial or judicial inquiry had been initiated. In 14 of the 106, cases had been registered,
and in 19 of them, chargesheets had been filed. None of the seven union territories reported any
deaths in police custody in 2017.
The report further classified certain incidences as human rights violation while showing statistics
as to those cases registered against police officers. These include: encounter killing, deaths in
custody, illegal detention, torture/causing hurt/injury, extortion, and “other”.
No state police personnel has been convicted for any reported deaths in custody in 2017.
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Out of the 56 registered cases of human rights violations by the police in 2017, only half of the
cases (29) get chargesheeted, only half of those get investigated to completion (14), and only a
fifth of those have gotten convictions (3). The probability of a registered case amounting to a
conviction was, thus, 1 in 18.
As many as 100 people were reported to have died in police custody in 2017, according to
National Crime Records Bureau (NCRB) data. Of these, 58 people were not on remand--they had
been arrested and not yet produced before a court--while 42 were on police or judicial remand.
In 62 cases pertaining to custodial deaths, 33 policepersons were arrested, 27 were

chargesheeted, four were acquitted or discharged, and none were convicted.
“One hundred custodial deaths in one year, in my view, point to serious cause for concern. It
indicates that conditions in custody are not conducive to keeping people safe and alive,” Devika
Prasad, programme head, police reforms at the Commonwealth Human Rights Initiative, a non-
profit, told IndiaSpend. “The police must be made to answer for someone turning up dead while
in their custody.”
Publication of the data is no deterrent to such actions, as news reports of several custodial deaths
followed the NCRB data release on October 21.
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On October 27, 2019, a 26-year-old youth, Vijay Singh, died in police custody at Mumbai’s
Wadala Truck Terminal police station, following which five policepersons were suspended, The
Times of India reported on October 30, 2019.
Singh was taken into custody after a complaint by a couple, who had accused Singh of harassing
them by pointing his bike’s headlights at them while they were seated together. The youth's
family and friends have alleged that he was whipped and denied medical aid despite complaining
of chest pain.
In another incident in Uttar Pradesh, 50-year-old Satya Prakash Shukla died in police custody
after being tortured, his family alleged, The Tribune reported on October 30, 2019. Shukla was
accused of looting a bank employee in Peeparpur area of Sultanpur.
“Every custodial death, every case of torture is to be condemned, analysed and investigated
properly to come up with findings, which then have to be put in ameliorative action,”
Yashovardhan Azad, former chief information commissioner and Indian Police Service official,
told IndiaSpend. “The basic directions of the Supreme Court [on police reforms] need to be
followed, infrastructure needs to be ramped up, capacities should be built and manpower
investment is required.”
The health and safety of any arrested person--any person in custody--is the responsibility of the
police, Prasad said, adding, “This is why the law mandates a judicial inquiry to be carried out
when a person dies in custody to look into the cause of death and the circumstances around it.
And also why the police are to report a custodial death to the National Human Rights
Commission within 24 hours of occurence, which in turn propels other accountability measures
such as a videographed postmortem. These are accountability measures to safeguard against
excessive force or illegality in custody.”
Suicide, the most reported cause
Custodial deaths reported in India increased by 9% from 92 in 2016 to 100 in 2017, as per
NCRB data. Andhra Pradesh reported the most deaths, 27, followed by Maharashtra (15) and
Gujarat (10) in 2017. These three states accounted for more than half of all custodial/lockup
deaths reported.
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Suicide (37) was the most reported reason for custodial deaths in 2017, followed by ‘death due to
illness/death in hospitals during treatment’ (28) and ‘injuries sustained during the police custody
due to physical assault by police’ (5). ‘Other’ reasons--not specified--accounted for 22 deaths.
“To a certain extent, suicide deaths in custody are true,” Azad said, citing the example of the
Nirbhaya case, where he said “Ram Singh (the main accused) was in jail and not even in police
custody when he committed suicide. It could be because of shame or other reasons.”
Human rights violation
The NCRB also recorded 56 cases against police personnel for human rights violations in 2017;
57 police were arrested, 48 chargesheeted and three convicted. Most cases registered under this
category were for ‘torture/causing hurt/injury’ (17), followed by ‘deaths in custody’ (7),
‘encounter killing’ and ‘extortion’, both registering six cases each.
“Torture is a grave crime and human rights abuse should never be seen as inevitable,” Prasad
said. “If a policing system is relying on torture to retrieve information from accused persons, it is
64
broken and has lost its credibility. There is nothing useful or purposeful that can come out of
torture.”
It is only painstaking investigation, finding and following up on clues, corroborating

information, collecting and preserving evidence, learning new interrogation and investigative
techniques that can hope to retrieve accurate and useful information, Prasad said, adding that
torture is absolutely prohibited by law in India: “It is against the law to forcefully extract a
confession.”
Ground realities
Injury is inflicted usually while trying to solve cases related to crime investigation and property--
like house-break, Azad said. "The conviction in house break cases is very low so there is intense
pressure on the police to solve the cases within a limited period during which the police
succumb."
Force is used while apprehending a criminal or suspect on the run for a long time. In rural areas,
there is no scientific aid like CCTV to support the process of investigation and in such cases, the
police succumb to the use of force, Azad said. The state of equipment is poor due to small budget
allocations.
Calling for improved infrastructure and personnel capacity, Azad said “a rickety infrastructure
with rudimentary facilities cannot inspire high grade policing”. “Except for a few places in the
headquarters, there are no proper interrogation cells,” he said, “One cannot bring the suspect or
the accused on the vehicle 80-100 km to interrogate to the police headquarters. So to try quick
methods, lower-level officials at times use force which can cause accidental injury or hurt
leading to serious damage. This is the reality of policing,” he said.
Police stations in rural areas lack basic amenities such as telecommunications signal or network,
internet connectivity, vehicles and motorable roads. Conditions in the hawalaat (lockup) are so
bad that just living in such conditions is torture, apart from being held in custody, Azad said.
“Zero tolerance”
65
“We have zero-tolerance against extra-judicial deaths, police atrocities but we should also
concentrate equally on terrorism because that's the biggest attack against the human rights,”
Amit Shah, union home minister, said addressing the 26th foundation day celebrations of the
National Human Rights Commission in Delhi on October 12, 2019, India Today reported.
“It is our responsibility that not a single person should die in police custody needlessly or a
person should be a victim of extrajudicial killing. But we will also have to provide facilities for
every person to live with dignity,” Amit Shah said.
Some fixes
“There are instrumentalities present in the system today to tackle the issue of custodial deaths,”
Azad said: every custodial death is subject to a magisterial enquiry. Even if one says the
magistrate is in the same setup as the police or is working hand in hand, one has the right to file a
complaint and go to court. “In many cases, the courts have taken strict actions against the
accused policepersons. Not just the police, other factors and non-functioning of instrumentalities
also need to be looked in to or questioned like the magistrate, court orders and the whole
executive setup," he said.
“The policemen need to be trained on investigation and techniques by the Central Bureau of
Investigation,” Azad added, “They need to go for refresher courses on various subjects including
psychology, which doesn’t happen. Instrumentalities are not working, so these are the basic
reasons which we have to be looked into.”
Talking about reforms and measures to prevent custodial deaths, Prasad said, “Prevention
requires a genuine and visible commitment to zero tolerance to custodial violence of any kind by
police leadership. And it also requires the guarantee of prosecution of police for torture and
custodial death, to send the surest signals that there is no room for inhumane actions and
practices in the guise of policing. This is not the case at present.”
66
67
68
69
Human Rights Watch Publishes Report On Deaths In Indian Police Custody: Chri
Contributes To Study
Human Rights Watch (HRW) has published a report that takes a deep dive into incidents
of deaths in Indian Police custody. The Commonwealth Human Rights Initiative was
among the organisations consulted by HRW, and both the Right to Information and
Police Reform teams contributed to the 114-page study.
Citing the National Crime Records Bureau, the HRW report says that between 2010 and
2015, 591 people died in police custody. Police blame most of the deaths on suicide,
illness, or natural causes.
Further, HRW points out that of the 97 custody deaths reported by Indian authorities in
2015, police records list only six as due to physical assault by police; 34 are listed as
suicides, 11 as deaths due to illness, nine as natural deaths and 12 as deaths during
hospitalisation or treatment. However, in many such cases, family members allege that
the deaths were the result of torture.
The report, “‘Bound by Brotherhood’: India’s Failure to End Killings in Police Custody,”
examines police disregard for arrest regulations, custodial deaths from torture, and
impunity for those responsible. It draws on in-depth investigations into 17 deaths in
custody that occurred between 2009 and 2015, including more than 70 interviews with
victims’ family members, witnesses, justice experts, and police officials. In each of the
17 cases, the police did not follow proper arrest procedures, making the suspect more
vulnerable to abuse.
Venkatesh Nayak, Coordinator of the Access to Information program at the Delhi-based
Commonwealth Human Rights Initiative, helped develop the model for the Right to
information letters filed for pending cases documented in the report. These letters were
filed under the proviso in the RTI Act, which states that information concerning the life,
or liberty of a person must be provided within 48 hours of the request. This is a
significant tool provided by the RTI Act to locate and protect people in custody who may
be in grave danger or whose whereabouts are unknown. Samples of the right to
information letters that Venkatesh helped formulate are included in the appendix. A
complete table of the applications filed and responses received at time of writing is also
available in the appendix.
70
CHAPTER-5
REMEDIES AND
SOLUTIONS TO
CUSTODIAL DEATHS
71
REMEDIES AND SOLUTIONS TO CUSTODIAL DEATHS
The Indian police continue to torture suspects in custody as they are rarely punished
On October 13, 2019, Pradeep Tomar, a security guard, rushed with his 10-year-old son to
Pilkhua police station in Hapur district in Uttar Pradesh. He had been summoned for
interrogation in connection with a murder case. The son later said that his father was brutally
tortured by the policemen in front of him for hours. When Tomar’s condition deteriorated he was
rushed to hospital, where he died. An FIR was registered against four policemen after the
National Human Rights Commission took note of the case.
Earlier last year, a Delhi court sentenced five U.P. policemen to 10 years of rigorous
imprisonment for torturing a man to death in custody in 2006. The five policeman had abducted
the victim on suspicion of his involvement in a car robbery and tortured him in custody. Later,
after he died, they manipulated records to obliterate all evidence of custodial death and closed it
as a case of suicide. The case was transferred from a court in Gautam Buddh Nagar to Delhi by
the Supreme Court on the grounds that a fair trial would not be possible within the State.
Pronouncing the verdict, the additional sessions judge Sanjeev Kumar Malhotra said, “The police
play a major role in the administration of criminal justice. One of the reasons for custodial death
is that the police feel that they have a power to manipulate evidence as the investigation is their
prerogative and with such manipulated evidence, they can bury the truth.” He added, “They are
confident that they will not be held accountable even if the victim dies in custody and even if the
truth is revealed.”
Acting with impunity
These incidents have brought into sharp focus the way Indian policemen torture and interrogate
suspects in their custody leading to death in several cases. As a result, policemen all over the
country have been severely criticised and condemned. Strictures passed against policemen from
time to time by learned judges of various courts notwithstanding, the police continue to brazenly
torture suspects in their custody.
72
The Central Bureau of Investigation too uses torture as a method of investigation. In September
2016, B.K. Bansal, Director General of Corporate Affairs, and his son Yogesh committed
suicide. In their suicide note, the two men listed the names of officers who had tortured their
family in connection with a case of disproportionate assets. Bansal’s wife and daughter too had
committed suicide two months earlier. On the directions of the National Human Rights
Commission, an inquiry was held by the CBI. Expectedly, the agency exonerated all the accused.
Taking cognisance of the matter, the Central Vigilance Commission published a standard
operating procedure laying down guidelines for interrogation of accused officials.
Custodial deaths have been on the increase in recent years. They increased by 9% from 92 in
2016 to 100 in 2017, according to the National Crime Records Bureau. Since policemen
responsible for custodial deaths rarely get punished, they feel emboldened to continue using
torture as the tool to get to the truth. In 2015, for instance, the police registered cases against
fellow police officers in only 33 of the 97 custodial deaths.
A historic order
The Supreme Court delivered a historic order in 2006 on police reforms. It stated, among other
things, that every State should have a Police Complaints Authority where any citizen can lodge a
complaint against policemen for any act of misdemeanour. However, only a few States such as
Kerala, Jharkhand, Haryana, Punjab and Maharashtra have implemented the order. Others have
not taken the matter seriously.
Until exemplary punishment is meted out to policemen who are responsible for custodial deaths
after proper judicial inquiry, not much can be expected to ameliorate the situation. Proper
interrogation techniques coupled with use of scientific methods to extract the truth from suspects
can go a long way in reducing custodial deaths.1
Solutions For The Plight Of Under-Trials
We need not look far. All that needs to be done is to compile the recommendations and
suggestions given by the various expert groups and institutions and start implementing them.
Following are some of the major recommendations given till date –
1
M.P. Nathanael is a retired Inspector General of Police, Central Reserve Police Force
73
1) Undertrial prisoners should be lodged in separate institutions away from convicted prisoners.
There should be proper and scientific classification even among undertrial prisoners to ensure
that contamination of first time and petty offenders into full fledged and hardcore criminals.
2) Under no circumstance should they be put under the charge of convicted prisoners.
3) Institutions meant for lodging undertrial prisoners should be as close to the courts as possible.
4) Provisions of Section 167 of the CrPC with regard to the time limit for police investigation in
case of accused undertrial prisoners, should be strictly followed both the police and courts.
5) Automatic extension of remands has to stop which are also given merely for the sake of the
convenience of the authorities. Mere convenience of the authorities cannot supersede the
Constitutional guarantees under Article 21.
6) All undertrial prisoners should be effectively produced before the presiding magistrates on the
dates of hearing.
7) The possibility of producing prisoners at various stages of investigation and trial, in shifts
should be explored.
8) Video conferencing between jails and courts should be encouraged and tried in all states
beginning with the big Central jails and then expanding to District and Sub jails.
9) The District Magistrate should constitute a committee consisting of representatives from the
local police, judiciary, prosecution, district administration and the prison department at a fairly
high level, to visit the Sub jails under their jurisdiction at least once every month and review
delay in cases of prisoners if any and adopt suitable measures.
10) Police functions should be separated into investigation and law and order duties and
sufficient strength be provided to complete investigations on time and avoid delays.
11) The criminal courts should exercise their available powers under Sections 309, 311 and 258
of the CrPC to effectuate the right to speedy trial. In appropriate cases jurisdiction of the High
Court under Section 482 of the CrPC and Articles 226 and 227 of the Constitution of India can
be invoked seeking appropriate relief or suitable directions to deal with and prevent delay in
cases.
12) With undertrial prisoners, adjournments should not be granted unless absolutely necessary.
13) Order of Dr. A.S. Anand – former Chief Justice of India on holding Special Courts Jails for
prisoners involved in petty offences and willing to confess, should be actively taken up by the
High Courts and implemented in all districts.
74
14) There should be a progressive and massive Decriminalization of offences so that many of the
wrongs, which are now given the status of crimes, are dealt with as compoundable tortuous
wrongs remediable with a claim for compensation.
15) The class of Compoundable offences under the IPC and other laws should be widened.
16) Alternatives to imprisonment should be tried out and incorporated in the IPC.
17) Remand orders should be self-limiting and indicate the date on which the undertrial prisoners
would be automatically entitled to apply for bail.
18) Computerise the handling of criminal cases and with the help of the National Informatics
Centre, develop programmes that would help in managing pendency and delay of different types
of cases. The High Courts should take an active interest in helping subordinate courts to speed up
cases.
19) There should be an immediate increase in the number of judges and magistrates in some
reasonable proportion to the general population. It should be at least 107 judges per million of
the Indian population.
20) In case of violation of any fundamental right of the prisoner then the state should give
adequate compensation to the victim
Implementation of DK Basu judgments can protect against custodial torture, death 1

In the current context of the reprehensible custodial deaths in Tamil Nadu, I am reminded of my
own tryst with this seminal issue, being the Supreme Court’s Amicus on the subject, through the
important DK Basu judgments, since 1987. Starting with a letter complaint of 1986, this
converted PIL spawned four crucial and comprehensive judgments — in 1996, twice in 2001 and
in 2015, laying down over 20 commandments.
Additionally, it led to at least five other procedural, monitoring and coordinating judicial orders,
in the best traditions of continuing mandamus. These have created a valuable and seamless web
of legal principles and techniques to reduce custodial death and torture. Little more by way of
theoretical structure is required if DK Basu’s comprehensive coverage is genuinely implemented.
But where we fail — as in many other things in this country — is in operationalising the spirit of
1
https://indianexpress.com/article/opinion/columns/tamil-nadu-police-custodial-deaths-torture-guarding-the-
guardians-6484025/
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DK Basu, in punitive measures, in last mile implementation, in breaking intra-departmental

solidarity with errant policemen and in ensuring swift, efficacious departmental coercive action
plus criminal prosecution.
As Amicus, we started with the existential Roman dilemma: “Who will guard the guardians”, the
so-called “rakshak bhakshak” syndrome. Justice AS Anand, who piloted it till the end, based his
approach on my written submissions, generously adding praise, tracing how torture is anathema
to democracy, tracing Royal Commissions in the UK, Law Commissions and Police
Commissions in India, Supreme Court progressive case law, like Joginder Kumar (1994) and
Nilabati Behera (1993), to grapple with the core issue, not really soluble even today: Relatively
little highhandedness occurs after formal arrest, most torture is done before the arrest is recorded.
Safeguards obviously kick in only after the arrest is shown. This is a perennial, insoluble
dilemma and all devious police forces globally use it
The first 11 commandments in 1996, therefore, focused on vital processual safeguards: All
officials must carry name tags and full identification, arrest memo must be prepared, containing
all details regarding time and place of arrest, attested by one family member or respectable
member of the locality. The location of arrest must be intimated to one family or next friend,
details notified to the nearest legal aid organisation and arrestee must be made known of each
DK Basu right, all such compliances must be recorded in the police register, he must get
periodical medical examination, inspection memo must be signed by arrestee also and all such
information must be centralised in a central police control room. Significantly, breach of this was
to be culpable with severe departmental action and additionally contempt also, and this would all
be in addition to, not substitution of, any existing remedy.
This first judgement went further, applying the principle that rights without remedies are illusory
and futile. Hence, all of the above preventive and punitive measures could go with, and were not
alternatives to, full civil monetary damage claims for constitutional tort.
The decades in between detailed judgements were spent in vital orders of monitoring and
goading compliance. Each state and union territory was forced to file information in pre-
designed charts by our team to make comparisons and collations simple. To get all responses and
data from states after several adjournments for a country of India’s size was no mean
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achievement of the SC. They were then presented, analysed in court state-wise, and general and
state-specific directions were then formulated, based on data found in these pre-prescribed
formats.
Hence, the eight other intermediate orders till 2015 sought precise detailed compliance reports on
each parameter, shamed deficient and delayed responses, directed any state human rights body,
where constituted, to set up special sub-committees to monitor and report as eyes and ears of the
SC and where no SHRC existed, directed the chief justice of the high courts to so monitor
administratively. It emphasised that existing simple but potent powers for magisterial inquiries
under the CrPC were lackadaisical and must be completed in four months, unless sessions court
judges recorded reasons for extension. It also directed SHRCs to be set up expeditiously in each
part of India.
The third and last phase ended in 2015, ironically with another chief justice from J&K, CJI TS
Thakur. Stern directions were given to set up SHRCs but, more importantly, to fill up large
vacancies in existing bodies. The as yet unused power of setting up human rights courts under
Section 30 of the NHRC Act was directed to be operationalised. All prisons had to have CCTVs
within one year — a similar direction sought by me for all police stations was given as a court
exhortation to start a phase-wise CCTV in every police station without formulating it as a
mandatory direction. It was directed that non-official visitors would do surprise checks on
prisons and police stations and prosecutions and departmental action were unhesitatingly
mandated.
I am amused by the ignorance and mulishness of both the Tamil Nadu police and their political
masters when they suggest that DK Basu applies only in police and not in judicial custody. That
is a travesty and a pitiable distortion. DK Basu is all-encompassing, loophole covering and
makes absolutely no such distinction amidst categories of custody. Our democracy tax is too
high and too dilatory: A 1985 Law Commission report directing enactment of section 114-B into
our Evidence Act, raising a rebuttable presumption of culpability against the police if anyone in
their custody dies or is found with torture, has still not become law, despite a bill introduced as
late as 2017. We still have abysmally deplorable rates of even initiating prosecutions against
accused police officers.
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Actual convictions are virtually non-existent. Figures for initiating departmental action are better
but woefully low and hardly ever taken to successful dismissal. Not much is needed. Monitoring
and implementation of DK Basu by independent and balanced civil society individuals at each
level, under court supervision, is sufficient to minimise this scourge. Sadly, this is so near yet so
far.
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CHAPTER-6
CONCLUSION AND SUGGESTIONS
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CONCLUSION AND SUGGESTIONS
“No one can truly know a nation until one has been inside the jail. A nation should not be
judged by how it treats its highest citizen but its lowest ones”
-Mahatama Gandhi
Conclusion
In any democratic society, work in a prison is public service. Prisons are places like schools and
hospitals which should be run by civil power with object of contributing to the public good. Jails
are the critical part of any justice system and as a public sector responsibility, most states require
operating jails or housing their prisoners in other local government facilities.
Custodial crimes infringe upon human rights and the confession so extracted often fails to stand
the legal scrutiny. Violence of any kind at the hands of police or any governmental or non-
governmental agencies is counterproductive. It can turn innocent suspects or prisoners into hard
core criminals. The grudges they have against any particular official sometimes motivate them to
rebel against the whole country and its citizens. Therefore custodial management is very
important to overall jail management program so that the authorities are able to accomplish the
mission despite various challenges.
The government must re-educate the police out of their sadistic arts and inculcate a respect for
the human being, a process which must begin more by example than by exhortations. If any
policeman or for that matter any other officer of any other agency of the government is found to
have misconducted, the authorities should not hide the crime under the pretext of police
solidarity or brotherhood.
Custodial violence is amongst the worst crimes in any civilized society. It is a blatant violation of
human dignity. It strikes at the very roots of the rule and law.Custodial violence and abuse of
power is not only peculiar to India but it is also widespread. It has been the concer n of the
international community as the problem is not a regional problem but is universal and the
challenge is almost global. Third degree torture and custodial deaths, rape, molestation etc. have
become an intrinsic part of police investigations and the injury inflicted on the inmates is
sometimes unbearable.
Essence of custodial management comes down to three key objectives:
1-Protecting the safety of the inmates, jail personnel and visitors
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2-Preventing property damage and loss

3- Preserving inmate rights.
Suggestions
In view of the study made through this thesis, the researcher would like to suggest following
measures which need to be adopted to improve the present situation:
Redressal Mechanism
A redressal mechanism needs to be introduced consisting of a three-tier system - Grievance Cell
in every police circles, Complaint Board in all the districts and a State Security Commission at
the State level. For the smooth functioning of the mechanism and for a popular representation, a
civilian control mechanism be included in the form of Custodial Justice Committee at the cutting
edge level. Reputed human rights activists and social workers preferably from the locality, media
men, nominees from the bar and nominees from the police department should be the members of
the Committee to ensure custodial justice of arrested persons. The Committee should elect a
Custodial Justice Officer to look after the welfare of persons who have been taken into custody
by police. It should be made obligatory on the part of the arresting police officer to inform the
Custodial Justice Officer the matter of arrest as well as all other details such as the ground of
arrest, time of arrest, persons who have been intimated and the health condition of the person in
custody. A system for getting a signed statement from the Custodial Justice Officer and the
relatives that they have been intimated about the details regarding the arrest should be
introduced. District Level Human Right Cells should also be constituted in all the district
headquarters similar to the State level Human Rights Commission. Members of the District
Human Rights Cells, and the Custodial Justice Committee and Custodial Justice Officer should
be statutorily empowered to have immediate and unhindered access without prior notice or
permission to all places where people may be suspected to be detained by the police and to hear
them and to take appropriate actions against the delinquent officials. The release of a person
from police custody should be done only in the presence of his relative or friend or his advocate
or a respectable person of the locality or a member of the Custodial Justice Committee. There
should be a proper record consisting of the whereabouts of the detainee and his arrest.
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Scientific Recruitment, Training, Workshops, Orientation, And Refresher

Programme
The recruitment policy of the government should be based according to the latest scientific
developments in the concerned field which should be fair but strict to assess the suitability of the
candidate for the post. Scientific method of recruitment be adopted to obtain candidates of
professional aptitude, sound character, political neutrality, above-average intelligence and
emotional stability. By taking into consideration the raising educational standard and financial
standard of the society, qualification of the constabulary must be raised to graduate level and
their pay scale be revised periodically. Persons with criminal nexus or background should not be
selected for national service.
There should be focus on training which is modern and humane in nature to be given not only at
the time of recruitment but also throughout the service at regular intervals to update the
knowledge and skills, to develop a helping attitude towards the general public. Training and
recruitment are important areas that needs to be addressed promptly. The training programme
should be reoriented to bring about a change in attitude and mindset of the police with regard to
investigations. They must recognize and respect human rights and adopt scientific investigation
methods.
The Police Training Academy and Schools should initiate human rights education and training
program on custody management for lower level police functionaries such as constables. Human
rights based interrogation and investigation skills should be imparted to the Sub-Inspector trainee
with latest development in the field of custodial jurisprudence. During the training period and the
service period, workshops should be organized on the subject ‘Third degree methods: a boon or a
bane’ in regular intervals and the participants should be allowed to freely express their feelings
so that wrong notions buried deep in them could be extracted out and by process of counselling
right and apt thoughts could be imbibed in them. Human Right activists, people from different
walks of life including women, officers from all ranks of the police including constables must be
invited to attend this workshop. Object of police training should be to inculcate a human right
culture on the basis of the international and national standards for the protection of human rights
in police custody.
Refresher courses on custodial rights be organized periodically at all levels. Implementation of
practices taught during training should be monitored and evaluated. Sufficient resources should
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be allocated to ensure that programmes and training can be carried out effectively and followed
up regularly. The police personnel should be made accountable for their actions and encouraged
to be duty bound. In order to protect the citizens, they have to ignore their prejudices based on
caste, gender etc.
Regular gender sensitization and orientation courses should be conducted for police personnel of
all ranks. Health professionals, Non-Governmental Organizations, counsellors, experts and
individuals from all walks of life who have a thorough knowledge about violence against women
especially and others as well should be invited to address and to interact with recruits and those
in the service. Police personnel should be provided with periodical inservice training in the field
of human rights. Linking in-service training courses with the channels of promotion would
ensure better motivation and greater effectiveness in the field of protection of human rights of
others by police. The senior police officers should envisage novel programmes like ‘Police-
Community Relations’ and thereby establish a constant contact and healthy relationship with the
general public. The libraries of the police training institutions should be well equipped with
sufficient books and reading materials on subjects like human rights, modern scientific methods
of investigation, behavioural science, criminal psychology etc.
There is a need to devise a scheme wherein steps to police the police are taken, where wits and
not fists are the part of police kit, where third degree methods are completely plucked out and the
fresh shoots of human respect are put in. To understand the criminal and the crime better, the
predisposing and precipitating factors in the psyche of the criminal should be studied. For this
purpose a Police Psychic Centre should be constituted in connection with the District Police
Head Quarters wherein curative measures against criminality should be introduced. This system
will enable the treatment of different levels of errant personalities in a scientific and
psychological manner without violating their human rights.
Police modernization schemes, in most of the states are an area of low priority and government
planners have somehow remained oblivious to a basic hard fact i.e. maintenance of peace and
order is sine qua non of a nation in its economic progress. Along with the knowledge of the laws-
substantive and procedural, undergoing harsh physical training etc, there is also a need to be well
versed with the latest technology and scientific aids to further investigations. The old fashioned
policing (that is by muscular power) should be replaced by polished policing (that is by mind
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power). The things or the objectives that can be achieved by education, training and expertise
cannot be obtained by employing unfriendly and anti-human rights methods.
The District Police Administration should install CCTV camera in all police lock-ups and
interrogation rooms as part of ongoing police modernization scheme.
Generation Of Awareness For Protection Of Human Rights
Indian criminal justice system must be based on respect for human rights, in particular the rights
of the victims and the rights of the accused. The criminal justice system should be in conformity
with the international human rights obligations of India. The reform should take into account and
seek to eradicate the root causes of its malfunctioning. The government of India promulgated the
Protection of Human Rights Act, 1993 and National Human Rights Commission was thereby set
up in 1993 which plays an important role in protecting the rights of detained persons.
The abuse of power by the law enforcing agencies cannot successfully be prevented altogether,
as the obedience to the law depends upon the social consciousness of their commitment to the
human rights and to the individual’s freedom and liberty. The law should be made stringent so
that all chances of human rights violations in the custody of law enforcing agencies are reduced
and the efforts at least to minimize it to the maximum possible extent be at least thereby made.
The contact of the police with the public should be friendly enough to create mutual respect. If
the police respect the public, the public will respect them too. It is essential to have an endeavour
on the part of the police to eliminate the mutual hostility and distrust existing between the police
and the public and to develop cooperation, transparency and openness in dealing with the public
especially with mass-media.
The cardinal principle behind the concept of human rights is the recognition of the rights of
everyone to live with human dignity and let others also live with such a dignity and this principle
must become the philosophy of life for everyone including the people having authority over
others.
The police should also follow the same philosophy since they also form a part of the society.
Circumstances make a man a criminal and he does not lose his dignity by the mere reason that he
is destined to become a criminal. Police should not resort to torture, violence, rape and deaths in
police custody. The police needs to act in a humane, tolerant and dignified manner. The dignity
of police is not something to be buried within the four walls of the police station. The police
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should bear in mind the fact that they are also human beings and the notoriety or reputation they
have earned in their service does not end with their retirement or death.
Therefore it is necessary for the police to reorient its style of functioning for playing a more
effective role in controlling crime and winning the support and confidence of the people. Radical
reform of the police set-up is the need of the hour.
High degree of sensitization and training of the government agencies and its officials is an
essential component of any program directed towards prevention of custodial violence, rape and
deaths. Sensitization is largely a consequence of awareness arising out of manifestation of
societal concern and the condemnation of degrading acts.
Efforts to do away with the use of short cut methods of investigation and interrogation i.e. use of
third degree be made. Efforts to create a climate by each and every individual of the society to
respect not only his own rights but also the rights of others be made. Compliance with the eleven
requirements enumerated in D.K.Basu’s case should be ensured in all cases of arrest and
detention.
Compensation To Victims, Their Families And Judicial Activism
Judicial Inquiry in custodial crimes cases should ensure full participation of victims and
witnesses apart from other stakeholders. Award of compensation in a proceeding under Articles
32 or 226 of the Constitution of India for custodial crimes is a remedy available in ‘public law’
based on strict liability for contravention of fundamental rights to which the principle of
‘sovereign immunity’ does not apply. There is a positive trend of the judicial policy for
compensating victims of custodial violence or the families of victims of custodial deaths. But
this compensation is awarded without any regular or comprehensive basis or principles for
quantifying the amount. The courts and the judges go by their intuition rather than any rational
basis or law. Therefore, a proper law on the subject needs to be made so that there is uniformity
in granting compensation and every judge has a set guidelines to be followed while passing the
orders for compensation to the victim or to his family along with punishing the offender suitably.
Increasing use of compensation remedy may also give an impression that the state is ready to
compensate, if it can purchase the right to continue to inflict constitutional deprivations on its
citizens. Whether a death is deliberate, accidental, suicide or due to neglect or howsoever it is
caused, the net result is a custodial death. Then the question is how to compensate for the life
that has been lost, of the fact that state agencies have committed a crime and therefore, the state
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must pay compensation. The question remains about the prosecution of those officials who have
committed this heinous crime. A number of judgments have been delivered by the honorable
Supreme Court of India whereby important guidelines have been issued and also it has provided
for the payment of compensation to the persons affected by custodial crimes. The judiciary can
play a positive role to curb the menace of custodial violence, custodial rape and custodial deaths.
Judicial activism in the form of institution of public interest litigations have contributed greatly
towards restraining the reckless members of the various forces. Provisions be made for
appointing special prosecutors in cases of custodial violence, rape and death and interim relief be
given to victims of custodial violence.
Separation Of Departments
The authority conducting the investigation should be separate and independent from the
detention authority. An independent investigating agency may be entrusted with adequate power,
to investigate complaints of custodial violence against police personnel and take stern and
speedy action followed by prosecution, wherever necessary.
The women detainees should be interrogated by women police only. The length of the police
custody should not be extended. The working style of the police since Britishers ruled India has
not gone any major change. The police performs all kinds of roles at one go which should not be
the case.
In our present system of criminal justice administration, arrest is followed by investigation and
collection of evidence. After taking a person into custody the investigating officers usually try to
get confession by inflicting physical and mental torture. Our criminal justice administration
should follow and adopt the policies of other developed countries like England and America that
suits our present requirements and needs. A new system of criminal investigation is to be
fostered in which arrest and interrogation must be the final step after knowing the whereabouts
of the suspects and collection of all evidence by lawful means. Sufficient time should be given to
the investigating officer for the collection of evidence against the real offender for which
adequate training needs to be imparted to the police and other officers accordingly.
Powers of the police to arrest should be strictly limited and adequate safeguards for arrest should
be ensured. Police should be required to maintain records in writing the need for arresting an
individual as a means and measure for reducing the number of unwarranted arrests at the
instigation of vested interests of parties.
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There should be ample facilities for free communication between the interrogated and the
interrogator. Detainees should be promptly informed of any charges against them. The extensive
training in investigations with recent scientific innovations be imparted to create specialized
wings for investigations.
In the existing system of policing the police personnel are getting only 30% of their time on
investigation duties. Due to the shortage of time they resort to the short-cut method of torture.
Therefore it is very essential that investigative work should be de-linked from law and order
functions and other duties so as to enable the police to get sufficient time for investigative duty.
The investigating police officers should not be allowed to go for VIP bandobast and similar
duties. There should be a clear demarcation as to who will lodge an FIR, who will investigate the
matter, who will make arrests or detention and who will file a report in the court of law and
perform other duties to maintain law and order.
Good Working Environment
There is a need to make a conscious effort by all the internal and external bodies towards
bringing much needed attitudinal changes in the police and other governmental agencies. The
need to create an environment where they can perform their duties with a sense of pride and
fulfillment without feeling hamstrung either on account of legal hurdles or due to administrative
and financial problems can hardly be over emphasized. It is only when policing and police are
elevated to a pedestal of a well-deserved priority in the government scheme of things and the
necessary training and orientation is imported to the rank and file of police forces that
observations in police behavior can be progressively learned and the image of the police in
public perception will change sooner or later for the better.
Section 22 of the Indian Police Act, 1861 and relevant sections of the State Police Acts lay down
that police officers are to be considered to be always on duty and may at any time be employed
as a police officer in any part of the general police district. This has dehumanized the entire
police system.
Therefore it is high time to limit the working hours of police people to eight hours with periodic
holidays. They should be given overtime allowance for the extra hours of duty as is done in
many nations like Britain. A policeman generally works at least for 16-20 hours a day and almost
7 days a week continuously without a weekly off for months. Thus the present situation is much
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worse than that existed in 1979 when the National Police Commission found that a policeman
had to work for sixteen hours per day.
Due to continuous work without leisure and recreation, the police people tend to become
mentally and physically ruptured with the result that they become highly insensitive to human
rights of the person with whom they interact. It is only in the Indian Police that policemen are
not allowed to have religious or national holidays. They should be given either compensatory
leave for equal number of days or a special allowance. Steps should be taken to increase the man
power in police department. Representation of women should be high in every police station.
More over the official status of the constabulary is to be upgraded to the rank of skilled workers.
The working conditions of the policemen especially the lower ranks are quite pathetic. They are
not given good pay. They do not have any fixed hours of work nor is family accommodation
available to all of them which causes a lot of stress and dissatisfaction. Their promotion
prospects are not bright due to which they adopt to the short cut methods. It becomes difficult for
them to be sensitive towards human rights under these conditions. The government should
provide the police and other government departments with humane conditions of work and free
them from outside interference. Good working environment will only add to their capabilities
and efficiency in carrying out their duties effectively.
Accountability And Supervision By Seniors
The functioning of lower level police officers should be continuously monitored and supervised
by their superiors to prevent custodial violence and adherence to lawful standard methods of
investigation be followed.
There must be more transparency and accountability in the functioning of all the government
departments. Officers in charge of the work should be prepared to show and prove to the people
that they are doing only lawful things whenever claiming to administer or helping in the
administration of justice. There is no need to be unduly secretive in police or other work which
may cause more suspicion in their sense of doing justice. There can be no justification for
lawlessness in police functioning. Unjustified violence and all sorts of human rights violations
have a tendency to administer miscarriage of justice, obscure the real issues and effect adversely
the police relations or the relations of other agencies with the public.
The functioning of lower level police officers should be continuously monitored and supervised
by their seniors so that custodial violence and custodial deaths are prevented and strict adherence
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to national and international laws and conventions is maintained. There is a total lack of control
and accountability which is evident from the data available that how they use third degree
methods and do informal and unlawful detentions.
The existing law lays down only a passive duty on the part of police personnel to abstain from
torture. Instead of that the law should lay down a positive duty on the part of all police personnel
to prevent and bring before law all kinds of torture committed by their fellow beings.
Unlawful orders of the superior police officers need not be obeyed by the subordinates. Earnest
endeavour should be made to make it a part of the police culture that the unlawful orders of the
superiors shall not be obeyed. Specific provisions need to be made so as to make superior
officers also liable for giving unlawful orders to commit torture.
The policy of or the attitude of achieving the ends by any means needs to be changed. The
prevalence of means over ends should be made the cardinal principle and if any official violates
any human right of an individual in his custody, the same should be punished under the law. The
senior officers should pass on the instructions as well as keep an eye on their juniors that they are
not to commit any type of custodial violence. Many a times the senior officer tacitly encourages
these aberrations and then blames the juniors when things get out of hand. This kind of
duplicitous approach will not help anyone.
This only creates a feeling among the juniors that seniors are paying lip service to laws and rules
and they do not really mean what they preach. This is proved by the fact that despite the
suspension orders and departmental inquiries instituted against erring officers, due to dragging of
the matters very few offenders are actually brought to books or are punished. The Government
should declare that it will not tolerate any kind of human rights violations in police custody
under any circumstances and such a declaration should be made a part of its police policy. There
should be a zero tolerance policy against any kind of custodial torture whether small or serious.
The Government should ensure a strict supervision over all police personnel authorized to arrest
and detain suspected or accused persons. Steps should be taken to see that frequent visits to
police stations are made by superior officers as well as a specially constituted squad of police
officials who are capable of carrying out their duties impartially and without any bias to any
particular official. It should be ensured that such officials have a regard for human rights,
constitutional rights and other legal rights. Police officials should be strictly instructed to comply
with all the decisions of the courts regarding custodial violence.
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Amendment Of Laws
Law commission in its 113th report recommended amendment to the Indian Evidence Act so as
to provide that in the prosecution of a police officer for an alleged offence of having caused
bodily injuries to a person while in custody, if there is evidence that the injury was caused during
the period when the person was in police custody, the court may presume that the injury was
caused by the police officer having the custody of that person during that period unless, the
police officer proves to the contrary. The onus to prove the contrary must be discharged by the
concerned police official. The recommendation, however, appears to have gone unnoticed and
the custodial violence and custodial deaths is flourishing unabated. The legislature must
immediately take notice of the Law Commission Report and give effect to it by amending the
Indian Evidence Act.
The Constitution is to be amended so as to incorporate the provisions prohibiting torture and
other cruel, inhuman or degrading treatment or punishment. Various police related policies such
as Police Modernization Scheme, Model Police Act, 2006 and National Policy on Criminal
Justice System should be modified to ensure full participation of victims of custodial crimes in
justice delivery system. The Government of India should either enact a new law or reform the
existing Police Act and spell out the role of police in the changing society and accountability to
people at large by giving more importance to the rights of the persons in custody. These
instruments should be updated and any new legislation which deals with the relation between
police and public should be kept under regular periodic review to ensure that the protection of
human rights is maintained.
The Prison Act should be reformed and there should be complete overhaul of the Prison Manuals
with humanitarian touch and the copies of the same ought to be made available to the prisoners
and liberal visits by family members and friends must be encouraged.
All the Acts pertaining to prison administration should be consolidated and a new uniform and
comprehensive legislation should be enacted by the parliament for the entire country. Revision of
Jail Manuals should be given top priority and separate legislation for young offenders should be
passed. Criminal Procedure Code should be amended so that as soon as an under trial prisoner
completes a period of detention equal to half of the maximum sentence awardable to him on
conviction, he should be released unconditionally. The Supreme Court has time and again passed
judgments to this effect but no policy has been made so far for the same. Code of Criminal
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Procedure empowers the trial court to award compensation only if the offender is found guilty by
the court. An amendment to the effect of empowering the trial court to award interim
compensation in case of human right violations by persons in authority is needed.
Protection of Human Rights Act need to be amended to empower the NHRC to award
appropriate compensation in the cases of violation of human rights by police and other agencies
instead of merely recommending the same to the concerned authority or Government.
Verification mechanisms should be arranged to ensure that orders for compensation are
implemented promptly by the authorities and that they are paid directly to the awardee.
Safeguards for detainees on arrest which have been set out by the Supreme Court, particularly in
D.K. Basu v. State of West Bengal be incorporated in relevant statutory law and all police
manuals. Measures should be taken to monitor their implementation and statistics should be
published periodically.
Standard Of Burden Of Proof
The law relating to burden of proof should be reexamined to establish and prove custodial
violence. The courts in India are required to have a change in their outlook and attitude towards
custodial violence and should have zero tolerance policy towards the same. They should exhibit
more sensitivity and adopt a realistic rather than a narrow technical approach while dealing with
such crimes. The high incidence of custodial crimes and low conviction rate of delinquent police
and other officials show the grimness of the situation. Owing to the special nature of these
offences, the standard of proof from ‘proof beyond reasonable doubt’ to ‘clear and convincing
method’ should be adopted.
Recreational Activities
The libraries of the police training institutions should be well equipped with sufficient books and
reading materials on various subjects like human rights, modern scientific methods of
investigation, behavioral Science, criminal psychology etc. which can be read during their leisure
time. Yoga as a form of meditation and to distress themselves and some physical games be
compulsorily introduced so that their energy is positively channelized and they remain fit
mentally as well as physically and concentrate on their work with more energy and power.
Adoption Of Simple, Foolproof And Scientific Methods For Solving The Problems
Simple and foolproof procedures should be introduced for prompt registration of first
information reports relating to all crimes. Computerization, videorecording, and modern methods
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of record maintenance should be introduced to avoid manipulations, insertions, substitutions and

ante-dating with regard to first information reports, mahazars, inquest proceedings, post-mortem
reports and statements of witnesses etc. and to bring in transparency in action. Every
investigating agency should be provided with the latest techniques and modern equipment to
gather relevant evidence to prove the guilt of the accused without violation of any human rights,
like equipment to lift fingerprints from the scene of crime, recording of evidence by both
audiovisual computers, trained technicians, footprint and fingerprint experts, photographers,
sophisticated forensic laboratories etc. The States should look into the possibility of making
electronic recordings of interviews with suspects. Polygraph test should be implemented in our
police system.
Large notice board in the police stations and in the jails should be put up so that even if
somebody is not aware of his or her rights, he or she should come to know of them then. There
should be an endeavor to achieve a balanced level of functioning , where police respects human
rights, adhere to laws and take confidence building measures and at the same time, firmly deal
with organized crime, terrorism, white collared crime, deteriorating law and order situation etc.
Surprise Checks
Surprise checks and inspections of the police stations, police lock ups, jails, care taking
institutions or homes should be done on a regular basis so that the human rights violations if any
can be found out and appropriate action be taken on time.
The board of visitors must inspect the cells and the food served to the prisoners, the medical
facilities given, cleanliness kept and whether any one is illegally detained or not should be
monitored properly. There must be timely and regular examination of the registers and records
of the people kept in prisons. And if any inmate gives any relevant information, it should be
forwarded to the government without any delay. The magistrates also should meet the prisoners
to listen to their grievances. They should be permitted to set up a wall paper to ventilate
grievances.
A comprehensive custody record containing all the details of arrestees from the time of arrest
should be kept in the station. Whenever a person is arrested, the place, exact time of the arrest,
by whom it was made, where the arrested person is being kept, to whom he has been handed
over, details of witnesses and other relevant information should be entered in the diary. All these
matters should be intimated to the District Police Head Quarters and to the concerned Custodial
92
Judicial Officer. All police stations should keep accurate and up-todate record of these data along
with the reasons for detention and the time and date of the person’s entry and release from the
police station.
All police stations should be provided with reception-cum-waiting rooms with adequate seating
facilities. A register for recording arrest should be kept at these counters. An arrested person
should be brought into the station only after making an entry in the register.
The detainee should be promptly informed of the reasons for his arrest and detention to enable
him to effectively present his case seeking legal redress. The officers-in-charge of police stations
should be instructed that all detainees must be formally informed of their rights and privileges.
The arrestees should be made aware of their legal rights and privileges by displaying in the lock-
up a list of those rights and privileges written in the regional language. Taking into consideration
of the low literacy rate in many areas, it is suggested that this list of rights should be read out to
the arrested person in a language he or she understands as a legal formality. He should also be
informed of the disciplinary requirements in police stations.
Measures be taken to see that police and other agencies are not at all exerting pressure or
harassing, humiliating and victimizing the parents, relatives or friends of the ‘wanted persons’ in
the guise of investigation. When the police decides to arrest a person or to refuse bail or
permission to consult a legal practitioner or withhold implementation of any legal provision from
a suspect in extra ordinary circumstances, they must give reason for their action and the police
officer effecting the arrest should bring it to the notice of the Custodial Justice Committee
through the Custodial Justice Officer or the District Level Human Rights Committee instantly.
All persons taken into custody by the police or other agencies should be kept only in officially
recognized places of detention and the names of all those detention centers should be officially
notified. Secret or adhoc detention centers should not be allowed.
All these steps should be sincerely followed and checked by the concerned officials without any
feeling of brotherhood in giving undue favours.
Effective Prison Administration
Prisoner’s handbook should be published in Hindi and other regional language and should be
circulated to every inmate and its family. Jail bulletins regarding rehabilitative and improvement
programme should likewise be printed and circulated. The State must keep to norms and
standards consistent with the Standard Minimum Rules for treatment of prisoners.
93
Treatment Of Juvenile Offenders

Today juvenile offenders are on an increase. The members of the Special Juvenile Police Unit
constituted as per section 10 of the Juvenile Justice (Care and Protection) Act, 2000 need special
training and skills to understand, appreciate and handle actual or potential delinquents and to
devise schemes to help them become law-abiding citizens instead of recidivists or anti-social
elements in society.
Ratification Of International Conventions
The Government of India should ratify the United Nations Convention against Torture at the
earliest. The Government should accede to the U.N. Convention against Torture and Other Cruel,
Inhuman or Degrading Treatment or Punishment. The Convention on Prevention of Torture
requires the state parties to prevent only the act of torture. It is to be modified incorporating the
requirement to prevent the attempt, preparation, complicity and abetment to commit an act of
torture also as punishable. The Constitution needs to be amended so as to incorporate the
provisions prohibiting torture and other cruel, inhuman or degrading treatment or punishment
which is missing today.
The first Optional Protocol to the International Covenant on Civil and Political Rights should be
ratified by the Government of India. The Government of India should take steps to take away the
reservations it made while acceding to the Covenant so as to enable the Indian citizens to claim
compensation in case of wrongful arrest or detention.
Similarly India should ratify the Optional Protocol to the UN Convention on the Elimination of
All Forms of Discrimination against Women at the earliest to enable individuals to bring
complaints to the Committee on the Elimination of Discrimination against Women about
violation of their rights under the Women’s Convention once they have exhausted national
remedies. Special Rapporteur on Torture and the Special Rapporteur on Violence against
Women should be invited to India to investigate patterns of custodial violence against women.
The Government should also take steps for the prompt and effective investigation of all reports
of torture published by the media through an independent and impartial body. It should also
initiate model prosecution proceedings against the perpetrators of torture. Voluntary
organizations and human rights activists should be encouraged and appreciated in their
endeavors to protect human rights of the accused and victims
Enactment Of Statute And A Place In Governments Five Year Plan
94
Custodial Crimes (Prevention, Protection and Compensation) Bill, 2006 which is still pending
should be passed by both houses of the parliament and made a reality by showing great political
will towards zero tolerance policy of the government. This will provide institutional mechanism
for victim’s participation in the inquiry, investigation and trial stages to ensure his right to know,
to get a fair justice and a right to rehabilitation as well as safety and security. The Indian law
should specifically define the term ‘custodial violence’ in its laws-substantive as well as
procedural. This definition should also include all those persons who are arrested formally and
also those who are under inquiry or interrogation and without any formal arrest are subjected to
custody.
Government should identify the problems and the deficiencies and prepare a master plan
regarding the action that has to be taken to curb this menace completely in its five year plan.
Positive Role Of Society, Media, Ngos And District Administration
The district administration should encourage local NGOs and media for research, documentation
and monitoring custodial crimes including rehabilitation of victims creating more open
environment and a human right culture at the police station level. Students of social work, law
and medical science should be encouraged in their concurrent field work (one or two days in a
week) to participate and play an important role in the administration.
The functionaries of Local self-bodies and Panchayati Raj institutions should be sensitized of
human rights education in general and custodial jurisprudence in particular. Civil Society
Interface with Police should be enhanced for a transparent, accountable and community oriented
police system. Media should be encouraged to bring to light the incidents and cases of custodial
violence to limelight so that the guilty are punished and the victims of the crime get justice. The
Media should dedicate a column on human rights at the front page of the daily newspapers and
also continue to monitor the cases of custodial crimes at all steps. There is a strong need to
highlight the plight of the victims and witnesses in getting access to justice.
The Non-government organizations should take up the issue of custodial violence and human
rights and reach out to the victim’s families. The NGO should organize workshops on right to
information with the police department and local people to ensure transparency in the system and
also as one of the anti-corruption strategy.
Organizations built under the law, like police are peoples institutions built on community edifice
but their structure and working tend to get so isolated from the public that a hiatus subsists and
95
creates a barrier causing immense friction and misunderstanding between the two. Common
sense would tell us that public participation does not mean that any and sundry can interfere in
the day to day working of public institutions. On the contrary, there is need to evolve a character
and ethos to the crucial activities of police by which the public can stand assured that measures
planned and pursued by the police are in the best interests of the community and further an
enlightened body which is independent of the executive in performing a watch dog role on their
behalf.
Medical Examination
There should be no pressure exerted on the doctors conducting the postmortem examination so
that free, frank and honest inquiry of the cases related to the custodial deaths or rapes be ensured.
The district administration should provide National Human Rights Commission’s instructions to
the medical officers engaged in post-mortem examination of custodial crime cases. The post-
mortem of persons who died in police custody should be conducted by a panel of doctors and not
by a single doctor appointed by District Magistrate in consultation with their Chief Medical
Officer.
In custodial death cases post-mortem is to be conducted within twenty four hours. Proper
training and orientation should be given to medical professionals to prepare post-mortem report
based on ethical standards. The deceased’s relatives should be permitted to post an expert
medical practitioner at the time of post-mortem. All post-mortem examinations in respect of
deaths in police custody should be video-filmed and sent to the NHRC and the State Human
Rights Commission. Steps should be taken to protect medical professionals carrying out post
mortems and medical examinations of alleged torture victims from police pressure. Police
officials should not be present during post mortems or the medical examination of detainees.
Indian council of Medial Research and National Council of Rehabilitation should ensure that
subject of torture and its causes and consequences is included in the curricula of Medical and
Rehabilitation education respectively.
Non-Political Interference In Investigation Of Custodial Crimes
The investigating agencies should not succumb to pressures exerted by the politicians. The
investigative work of the police should be made absolutely free from all types of external
political and other pressures. In no way the politicians should be allowed to interfere in the crime
investigation function of the police. Every official should serve a fixed term and the sword of
96
transfer should not be hanging over their heads all the time. Criminal proceedings should be
initiated against police officials who abuse their position and yield to corruption and political
influences which result in violation of human rights of persons who come in contact with the
police.
Implementation Of Suggestions Given By Various Committees And Commissions
On This Problem
The National Police Commission’s recommendations and the recommendations of other
Committees and Commissions on custodial violence should be implemented without any further
delay by the Government of India.
Study Of Human Rights As Part Of Curricullum
Any progress in society can be done only when the government and the people are conscious of
the need to ensure respect of human rights of each and every person. This can be achieved by
putting these important principles as part of the syllabus at the level of schools, colleges and
universities and in the training programmes of members of the parliament and state legislatures.
The academic institutions should undertake research studies on various aspects of custodial
justice including plight of victims of custodial crimes.
Introduction Of Indemnity - Insurance Schemes
Custodial violence, rape and death are offences in the eyes of law and must be treated as such
and no democracy can afford to have lawless law enforcement agencies ruling over people. All
such crimes need to be inquired into, the guilty be punished and the victims or their relatives be
compensated. This can be done by starting an indemnity- insurance scheme. The government
employees may be asked to pay certain amount as premium which they will receive in lump sum
with interest on their retirement or death whichever is earlier. This will ensure that they don’t
commit custodial violence during whole of their service keeping in mind the fact that if they do
commit it then along with getting punishment and suspension from job, they will also lose this
benefit and also that this premium will still be needed to be paid by them not for themselves but
the benefit of the same will now go to the victim or his family as compensation from his side.
The Government of India should provide compensation packages to the victims of custodial
crime and life insurance policy for next of kin and extend mental health programme for
community.
97
Establishment Of Human Rights Court

Human Rights Court should be constituted in all the districts. These courts shall be mandated for
speedy trial of custodial death and rape cases in custody beside other kind of custodial crimes.
Free And Prompt Legal Aid
The concept of free legal aid must take shape in reality from the moment a member of the society
is arrested which can reduce the opportunities for the investigating agencies to resort to unlawful
methods resulting in custodial violence. A person in police custody should be given free legal aid
if he is unable to hire a lawyer of his choice due to poverty at the cost of the State. Of course, the
consultation may be within the sight of the police officer but not within his hearing.
The District Legal Aid Authority in collaboration with BSNL or some other mobile or telephone
services should start a Helpline for providing free legal aid to the persons in detention or lock up.
Appointment Of Custody Officer
In all police lock-ups there should be sufficient space for the detainees to sleep during nights and
the lock-ups should have sufficient ventilation, adequate bathing and toilet facilities in the
vicinity of the lock-ups. There should at least be two lock-up rooms in all the police stations to
keep women separately from men and to avert innocent people from being manhandled by the
fellow detainees who are aggressive in nature. Those police personnel who are in guard over a
detainee in police stations should be specifically trained in matters like human rights of arrested
persons, custodial justice etc.
There should be a Custody Officer who should be fully responsible for the safety of the
detainees. Even the Station House Officer should seek his permission to interrogate the detainee.
There should be constant and continuous supervision over the detainees kept in police lock-ups.
The police personnel who arrest a person should brief the Custody Officer about the background,
mental make-up and behavior of the arrested person. It is necessary to see that the detainees do
not indulge in any acts likely to endanger themselves and others.
Police Documents Be Made Public
Police agencies in India are obsessed with secrecy. Some of the most harmless documents
pertaining to the police are labeled as secret and confidential. Police manuals or codes of practice
and standing orders should be public documents available at police stations on request after
payment of certain prescribed fee.
98
For ensuring the transparency in police work and to protect human rights of persons in custody,
the criteria for maintaining secrecy and restrictions imposed on the circulation of literature
relating to police be redefined.
Introduction Of Mobile Judicial Units
Judges should pursue any evidence or allegations of torture and order release if the detention of
an individual is found to be unlawful. A system of a ‘Mobile Judicial Unit’ (MJU) be introduced
in all the Taluks and Districts. It should be made mandatory that every arrest is to be reported by
the police to an officer of the Unit through wireless messages within a prescribed time limit.
In the foregoing chapters an attempt has been made to analyze the concept of custodial violence
in India with special reference to custodial violence committed by Indian police. According to
the modern democratic concept, police should always be a friend, guide and philosopher to all
the citizens including the criminals in the society. Remedies should not be far to seek. The need
of the hour is to generate the active interest of each and every citizen of the country and to
mobilize the public opinion to ensure that the society has a human and civil force throughout the
country.
Eternal vigilance is the price of liberty and the general public should be conscious of its rights
and duties towards oneself and towards others. They can combat this problem by raising their
voice of protest in times of need and by seeking intervention of appropriate authorities to deal
with such governmental agencies which are responsible for acting as criminals themselves, to
protect the persons or society from such criminals under their custody.
There is a need of creation of human rights culture in every governmental department. Human
rights are the ideals in which liberal democracies flourish. A positive approach to make everyone
aware of these lofty ideals will ensure enhancement of the quality of life in the society. Unless
and until people are convinced about the need to observe them in all the activities, these will
remain a utopian dream. Creating the milieu conducive for human rights culture is the need of
the hour. It can be concluded by saying that the system and the officers in charge can perform
their duty without the use of force, torture and third degree methods. Their efficiency of work
will increase if they use scientific methods, modern techniques to investigate the crime instead of
exercising force and coercion.
Unless stern measures are taken to check the malady of the very fence eating the crops, the
foundations of the criminal justice delivery system would be shaken and the civilization itself
99
would risk the consequence of heading towards total decay resulting in anarchy and
authoritarianism reminiscent of barbarism. The Indian courts therefore need to deal with such
cases in a realistic manner and with the sensitivity which they deserve, otherwise the common
man may tend to gradually lose faith in the efficacy of the system of judiciary itself, which if
happens will be a sad day, for anyone to reckon with.
The problem of custodial violence needs to be tackled from two ends, i.e. by taking measures
which are remedial as well as preventive. Award of compensation is one of the remedial
measures after the event. Effort should be made to remove the very causes which lead to
custodial violence, so as to prevent such occurrences in future.
But this can be achieved only when each of us come together and participate in building a strong
character of the nation. And since the force cannot function in isolation, therefore all others
which make criminal justice system i.e. prosecution, advocates, judges and functionaries in
correctional services has to come forward and take initiative to eradicate torture, violence, rape
and death in the custody. The non-governmental organizations and the general public should
further encourage this. It is necessary to secure peace and not to abuse and not to deprive
anybody of his or her basic right- the right to live with human dignity even when confined to
some custody whether legal or illegal. This would largely depend upon the proper understanding
and coordination of all wings of the society and government machinery put together.
“Be just to the criminal, Be just to the victim, Be just to the society, Be just to the criminal
justice system”.
100
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102
35. Chatterjee, Rigveda, S.K. "The Police In Ancient India" The Indian Police Journal
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NEWSPAPERS
1. Deepika (Thrissur), dt. 10.05.03
2. Deepika (Thrissur), dt. 18.05.02
3. Deshabhimani (Kochi), dt. 22.08.01, 06.05.02, 07.05.02,
4. Deshabhimani (Kottyam), dt. 09.05.02
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6. Deshabhimani (Trissur), dt. 04.05.02, 06.07.03, 13.07.03
7. Keralakaumudi (Kochi), dt. 19.06.02
103
8. Keralakaumudi (Thiruvananthapuram), dt. 02.10.02

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10. Madhyamam (Kozhikode), dt. 27.02.99 Madhyamam (Trissur), dt. 23.09.02
11. Malayala manorama (Kochi), dt. 05.11.02
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13. Mathrubhumi (Alappuzha), dt. 28.12.02
14. Mathrubhumi (Kochi), dt. 19.04.02,05.11.02, 13.10.03.
REPORTS
1. Fourteenth Law Commission Report 1950, Vol IT p.741, Ministry of Law Govt. of India.
2. Amnesty International India: Deaths in custody in 1994 (August 1995)
3. Amnesty International India: Rising reports of custodial deaths in Delhi, (June 1993).
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JOURNALS:
104
Kashmir University Law Journals

Supreme Court Cases
Allahabad Law Journals
All India Criminal Decisions
All India Reporter
LEGAL WEBSITES:
www.manupatra.com
www.supremecourtofindia.com
www.lexisnexis.com
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AVANISH KUMAR MISHRA, LLM.

Dr. SHAKUNTALA MISRA NATIONAL REHABILITATION UNIVERSITY

DISSERTATION FOR THE PARTIAL FULFILLMENT OF REQUIREMENTS

THE AWARD OF THE DEGREE OF MASTER OF LAWS (LL.M.)

"DEATH IN JUDICIAL CUSTODY: A LEGAL STUDY”

UNDER THE SUPERVISION OF MR. SHAIL SHAKYA, ASST. PROF. (LAW)

Mr. SHAIL SHAKYA Mr. AVANISH KUMAR MISHRA

Assistant Professor in Law Roll No. 184150002

Faculty of Law, DSMNRU Enroll No.: SU1800001459

I would like to extend my sincere thanks to Mr. SHAIL SHAKYA, ASSISTANT

AVANISH KUMAR MISHRA

AVANISH KUMAR MISHRA SHAIL SHAKYA

LL.M. (Candidate) Asst. Prof. Law

Roll No. 184150002

Place: Dr. ShakuntalaMisra National Rehabilitation University, Lucknow

Mr. SHAIL SHAKYA

Assistant Professor in Law

Dr. ShakuntalaMisra National Rehabilitation University

THE RESEARCH DESIGN

I.] AIMS & OBJECTIVES OF THE RESEARCH

This comprehensive research on “DEATH IN JUDICIAL CUSTODY: A LEGAL STUDY” is

I.] RESEARCH HYPOTHESIS

II.] RESEARCH PROBLEM

III.] RESEARCH METHODOLOGY

IV.] RESEARCH QUESTIONS

VI. FOOTNOTING & CITATION

i. Supervisor's Certificate (ii)

Judicial Custody In India ‘ (1-21)

Rights of Arrested Person

Legislations Facilitating Custodial Violence

Deaths in judicial custody

ICCPR - International Covenant on Civil and Political Rights

UDHR - Universal Declaration of Human Rights

ICESCR - International Covenant on Economic Social and Cultural Rights

CEDA - Convention on Elimination of All Forms of discrimination against Women

ICERD - International Convention on Elimination of All Forms of Racial

CRC - Convention on the Rights of the Child

UNCAT - United Nations Conventions against Torture

CPAED - Convention on the protection of rights of All persons against Enforced

ICC - The International Criminal Court

CINAT - Coalition of International Non-Governmental Organizations against

APT - The Association of Prevention of Torture

IRCT - International Rehabilitation of Victims of Torture.

UNVFT - United Nations Voluntary Fund for victims of Torture.

OMCT - The organization of Medical Centre of Torture

WMA - World Medical Association

WPA - World Psychiatric Association

CID - Criminal Investigation Department

DIA - District Inquiry Authority

DGP - Director General of Police

PADC - Police Act Drafting Committee

NHRC - National Human Rights Commission

ACHR - Asian Centre for Human Rights

LCI - Law Commission of India

PUCL - Peoples Union for Civil Liberties

IMA - Indian Medical Association

ILI - Indian Law Institute

SHO - Station House Officer

AIR - All India Reporter

SCC - Supreme Court Cases

IPC - The Indian Penal Code

Cr.P.C. - Code of Criminal Procedure

TADA - Terrorist and Disruptive Activities (Preventions) Act

POTA - Prevention of Terrorism Act