JUDICIAL RESPONSE TO CUSTODIAL DEATHS & VIOLENCE

The legality of police action in such circumstances has been debated for long, and a legal framework was put in place with
the intention of establishing accountability. The Supreme Court and the National Human Rights Commission (NHRC)
have framed guidelines that are to be followed in cases of custodial deaths.
NHRC guidelines
In 1993, the Commission had issued general guidelines that every case of custodial death must be intimated to it within 24
hours. Further, the post mortem reports, inquest requests, and other related documentation was to be sent to the human
rights watchdog to ascertain its reliability within two months of the incident.
The procedure of the Commission was established after a complaint from the Andhra Pradesh Civil Liberties Union
alleging a series of fake encounters in the state to eliminate individuals identified as Maoists or members of the People’s
War Group.
If a death is prime facie found to be a case of death that took place unlawfully, the Commission would grant
compensation to the victim’s kin and penalise the errant state and its officials, it was decided. In 2009, a five-judge
Bench of the Andhra Pradesh High Court recognised in the case of ‘Andhra Pradesh Civil Liberties Committee v.
Government of Andhra Pradesh’ that illegal killings by policemen have been taking place with impunity. The High Court
made it mandatory to charge policemen with culpable homicide in every case of encounter killing. However, the verdict
was immediately stayed by the Supreme Court when the AP government moved in appeal, and was eventually upheld in
2019.

While the appeal against the AP High Court verdict was pending, the Supreme Court heard another case, ‘ People’s
Union for Civil Liberties & Anr vs State of Maharashtra and Ors’.
The verdict in the public interest litigation, which was decided in 2014 by then Chief Justice of India R M Lodha and
Justice Rohinton Fali Nariman, mandated that every custodial death would be probed by a magistrate as per Section 170 of
the CrPC. the Bench of then Chief Justice RM Lodha and Justice RF Nariman firstly highlighted
that the right to life under Article 21 is available to every person and that even the State has no
authority to  violate that right. Pertinent observations made to this effect in the judgment authored by Justice (retd.)
Lodha include:

“Article 21 of the Constitution of India guarantees “right to live with human dignity”. Any violation of human rights is
viewed seriously by this Court as right to life is the most precious right guaranteed by Article 21 of the Constitution. The
guarantee by Article 21 is available to every person and even the State has no authority to violate that right … 

… his Court has stated time and again that Article 21 confers sacred and cherished right under the Constitution which
cannot be violated, except according to procedure established by law. Article 21 guarantees personal liberty to every
single person in the country which includes the right to live with human dignity.”

The Bench proceeded to highlight why it is necessary that encounter killings by the police must be investigated
independently.

“… killings in police encounters require independent investigation. The killings in police encounters affect the credibility
of the rule of law and the administration of the criminal justice system.“

After perusing suggestions made by the Bombay High Court, PUCL (through Advocate Prashant
Bhushan), submissions by Amicus Curiae Gopal Sankaranarayanan, and the NHRC, among
others, the Supreme Court eventually issued the following guidelines:
The court also issued several guidelines on holding an independent investigation into the encounter. The court said that the
investigation shall be conducted by the CID or police team of another police station under the supervision of a senior
officer at least a level above the head of the police party engaged in the encounter.

Petition was filed before Supreme Court in case of Extra Judicial Execution Victim
Families Association (EEVFAM) & Anr. v.Union of India & Anr in 2012,
challenging the alleged “fake encounters” in Manipur by state police.

The writ petition stated that during the period of May 1979 to May 2012, 1528 people were
killed in Manipur in extra-judicial execution. The memorandum compiled the list of 1,528
people allegedly killed unlawfully by state police and security forces. Petitioner presented
documents and evidences which stated that not even a single FIR was registered in any of these
alleged killings of innocent people with no criminal record.

Supreme Court in 2016 delivered the judgement in above case, stating unequivocally the
illegality of such decision and no “absolute immunity” in such cases. The head of C.B.I was
demanded to appear before the Court and set up a special investigation; it recommended National
Human Rights Commission to play an active role and to assist court.

In Prakash Kadam vs Ramprasad Vishwanath Gupta 1, the Supreme Court observed

that fake ‘encounters’ by the police are nothing but cold-blooded and brutal murders by the authorities
who are assigned to uphold the law, and those committing them must be given death sentences, placing
them in the category of ‘rarest of rare cases’. If crimes are committed by the ordinary people, ordinary
punishment should be given, but if the offence is committed by policemen much harsher punishment
should be given to them because they do an act totally contrary to their duties.

“If the salt has lost its flavour, wherewith shall it be salted?”, or as the ancient Romans used to say, “Who
will guard the Praetorian guards?”

In paragraph 26 of the judgment, it was observed:

“ Trigger happy policemen who think they can kill people in the name of ‘encounter’ and get away with
it should know that the gallows await them”.

this is a very serious case wherein prima facie some police officers and staff were engaged by some
private persons to kill their opponent i.e. Ramnarayan Gupta and the police officers and the staff acted as
contract killers for them. If such police officers and staff can be engaged as contract killers to finish some
person, there may be very strong apprehension in the mind of the witnesses about their own safety. If

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(2011) 6 SCC 189
the police officers and staff could kill a person at the behest of a third person, it cannot be ruled out that
they may kill the important witnesses or their relatives or give threats to them at the time of trial of the
case to save themselves. This aspect has been completely ignored by the learned Sessions Judge while
granting bail to the accused persons. In our opinion, the High Court was perfectly justified in cancelling
the bail to the accused-appellants. The accused/appellants are police personnel and it was their duty to
uphold the law, but far from performing their duty, they appear to have operated as criminals. Thus, the
protectors have become the predators. As the Bible says “If the salt has lost its flavour, wherewith shall it be
salted?”, or as the ancient Romans used to say, “Who will guard the Praetorian guards?” We are of the view
that in cases where a fake encounter is proved against policemen in a trial, they must be given death
sentence, treating it as the rarest of rare cases. “Fake ‘encounters’ are nothing but cold blooded, brutal
murder by persons who are supposed to uphold the law. In our opinion if crimes are committed by ordinary
people, ordinary punishment should be given, but if the offence is committed by policemen much harsher
punishment should be given to them because they do an act totally contrary to their duties. We warn policemen
that they will not be excused for committing murder in the name of ‘encounter’ on the pretext that they were
carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials the Nazi
war criminals took the plea that ‘orders are orders’, nevertheless they were hanged. If a policeman is given an
illegal order by any superior to do a fake ‘encounter’, it is his duty to refuse to carry out such illegal order,
otherwise he will be charged for murder, and if found guilty sentenced to death. The ‘encounter’ philosophy is a
criminal philosophy, and all policemen must know this. Trigger happy policemen who think they can kill people
in the name of ‘encounter’ and get away with it should know that the gallows await them.”

People must recall that there is a rule of law and procedure. If police officials start taking law into their own hands- it will
result in gross injustice to society at large. If people begin encouraging fake encounters, the instances of extra judicial
killings is bound to rise in coming years; it is therefore essential that strict actions are taken against such police officials.

Supreme Court in Raghbir Singh v. State of Haryana1 held that, “We are deeply disturbed by the
diabolical recurrence of police torture resulting in terrible scare in the minds of common citizens that their lives
and liberty are under a new peril when the guardians of law gore human rights to death.”  But in State of
U.P. v. Ram Sagar Yadav2 Supreme Court found it helpless to book to justice the policemen who murdered
Brijlal for failing to pay bribe of Rs. 100 in a trivial matter of cattle trespass and complained about bribe to
senior police officers. The Supreme Court held that an amendment regarding burden of proof should be done.
It held that, “Police officers alone and none else can give evidence as regards the circumstances in which a
person in their custody comes to injuries while in their custody. Bound by ties of a kind of brotherhood they
often prefer to remain silent in such situations and when they choose to speak they put their own glass upon
the facts and pervert the truth. The result is that persons on whom atrocities are perpetrated by the police in
the sanctum sanctorum of the police station are left without any evidence to prove who the offenders are.”

In Sheela Barse v. State of Maharashtra 3 the court has given directions to ensure protection
against torture and maltreatment of women in police lock up. In D.K. Basu v. State of W.B.4 after perusing
several reports on custodial violence Supreme Court held that, “Custodial violence including torture and death
in lock ups strikes a blow at the rule of law which demands that the powers of executive should not only be
derived from law but also that the same should be limited by law.” The court further said that, “However in spite
of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of the citizen,
growing incidence of torture and deaths in police custody has been a disturbing factor. Experience shows that
worst violations of human rights take place during course of investigation…custodial death is perhaps one of
the worst crimes in a civilized society governed by the rule of law ,” Supreme Court issued various guidelines.
The most of the guidelines have been incorporated in the code.

Supreme Court in Shamima Kausar v. Union of India6 is keeping a vigil eye on fake encounter of Sohrabuddin

Sheikh case. In Mehboob Batcha v. State7 respondents policemen wrongfully confined one Nandagopal in
police custody in Police Station Annamalai Nagar on suspicion of theft from 30.5.1992 till 2.6.1992 and beat
him to death there with lathis, and also gang raped his wife Padmini in a barbaric manner. The accused also
confined several other persons (who were witnesses) and beat them in the police station with lathis. Supreme
Court once again reiterated that custodial violence in police custody is in violation of this Court's directive
in D.K. Basu v. State of W.B.8 and we give a warning to all policemen in the country that this will not be
tolerated. The graphic description of the barbaric conduct of the accused in this case shocks our conscience.
Policemen must learn how to behave as public servants in a democratic country, and not as oppressors of the
people.

 Haricharan v. State of M.P.  Supreme

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Court reiterated the principle that the expression “Life or
Personal Liberty in Article 21 includes right to live with human dignity. Therefore, it also includes within itself
guarantee against the torture and assault by the States or his functionaries.” The Supreme Court, as the
custodian and protector of the fundamental and the basic human rights of the citizens, would view with deep
concern any allegation made against the police officials about custodial crimes. The states functionaries cannot
and must not be used for inflicting tortures on unprovoked people. The apex court has always been vigil to
protect the people from tragedies and tyrannies of Indian police by enforcement of fundamental rights very
vigourously. The judiciary has commanded respect by providing unprecedented remedies to people.

THE JUSTIFICATION GIVEN IN FAVOR OF ENCOUNTER KILLINGS

Torture always works as an antithesis to rule of law. But torture is a tradition in many penal systems. That is
why as a matter of policy, Articles 8 & 9 of United Nations Declarations on Human Rights protects all persons
from torture and other inhuman or degrading treatment of punishment. Indian Constitution, Code of Criminal
Procedure, Indian Evidence Act, and Protection of Human Rights Act provide adequate safeguards against
police torture and custodial violence. In spite of all these national and international safeguards encounters are
taking place perennially.

The usual defense pressed into service by the Policemen to justify encounter killings is that the act of
killing had to be resorted to in order to save themselves from the deadly attack made by the victims.
Contrary to the popular misconception that "encounter killing" is a defense available only to the Police
personnel, it is pertinent to bear in mind that encounter killing is a defense available to all persons
including the Police. What is projected by the encounter killers is the "right of private defense" available to
them when confronted with situations of grave danger to their life as would justify the exercise of this
right of private defense. The law relating to the right of private defense is contained in Sections 96 to 106
of the Indian Penal Code, 1860 ("IPC" for short). It may be profitable to reproduce those Sections
hereinbelow:-

SECTIONS 96 TO 106 OF IPC

"Section 96: Things done in private defence

Nothing is an offence which is done in the exercise of the right of private defence

Section 97: Right of private defence of the body and of property

Every person has a right, subject to the restrictions contained in Section 99, to defend -

First - His own body, and the body of any other person, against any offence affecting the human body;

Secondly - The property, whether movable or immovable, of himself or of any other person, against any act
which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is
an attempt to commit theft, robbery, mischief for criminal trespass.

Section 98: Right of private defence against the act of a person of unsound mind, etc.

When an act, which would otherwise be a certain offence, is not that offence, by reason of the youth, the
want of maturity of understanding, the unsoundness of mind or the intoxication of the person doing that
act, or by reason of any misconception on the part of that person, every person has the same right of
private defence against that act which he would have if the act were that offence.

Section 99: Act against which there is no right of private defence

There is no right of private defence against an act which does not reasonable cause the apprehension of
death or of grievous hurt, if done, or attempted to be done, by a public servant acting in good faith under
colour of his office, though that act, may not be strictly justifiable by law.

There is no right of private defence against an act which does not reasonable cause the apprehension of
death or of grievous hurt, if done, or attempted to be done, by the direction of a public servant acting in
good faith under colour of his office, though that direction may not be strictly justifiable by law.

There is no right of private defence in cases in which there is time to have recourse to the protection of the
public authorities.

Extent to which the right may be exercised:--The right of private defence in no case extends to the inflicting
of more harm than it is necessary to inflict for the purpose of defence.

Section 100: When the right of private defence of the body extends to causing death

The right of private defence of the body extends, under the restrictions mentioned in the last preceding
section, to the voluntary causing of death or of any other harm to the assailant, if the offence which
occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely :--
First-Such an assault as may reasonably cause the apprehension that death will otherwise be the
consequence of such assault;

Secondly-Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be
the consequence of such assault;

Thirdly-An assault with the intention of committing rape;

Fourthly-An assault with the intention of gratifying unnatural lust;

Fifthly-An assault with the intention of kidnapping or abducting;

Sixthly-An assault with the intention of wrongfully confining a person, under circumstances which may
reasonably cause him to apprehend that he will be unable to have recourse to the public authorities for his
release.

8[Seventhly.-- An act of throwing or administering acid or an attempt to throw or administer acid which may
reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such act.]

8. Inserted by Criminal Law (Amendment) Act, 2013 (w.e.f. 03/02/2013).

Section 101: When such right extends to causing any harm other than death

If the offence be not of any of the descriptions enumerated in the last preceding section, the right of private
defence of the body does not extend to the voluntary causing of death to the assailant, but does extend,
under the restrictions mentioned in Section 99, to the voluntary causing to the assailant of any harm other
than death.

Section 102: Commencement and continuance of the right of private defence of the body

The right of private defence of the body commences as soon as a reasonable apprehension of danger to
the body arises from an attempt or threat to commit the offence though the offence may not have been
committed; and it continues as long as such apprehension of danger to the body continues.

Section 103: When the right of private defence of property extends to causing death

The right of private defence of property extends, under the restrictions mentioned in Section 99, to the
voluntary causing of death or of any other harm to the wrong-doer, if the offence, the committing of which,
or the attempting to commit which, occasions the exercise of the right, be an offence of any of the
descriptions hereinafter enumerated, namely; -

First-Robbery;

Secondly-House-breaking by night;

Thirdly-Mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a
human dwelling, or as a place for the custody of property;
Fourthly-Theft, mischief, or house-trespass, under such circumstances as may reasonably cause
apprehension that death or grievous hurt will be the consequence, if such right of private defence is not
exercised.

Section 104: When such right extends to causing any harm other than death

If the offence, the committing of which, or the attempting to commit which, occasions the exercise of the
right of private defence, be theft, mischief, or criminal trespass, not of any of the descriptions enumerated
in the last preceding section, that right does not extend to the voluntary causing of death, but does extend,
subject to the restrictions mentioned in section 99, to the voluntary causing to the wrong - doer of any harm
other than death.

Section 105: Commencement and continuance of the right of private defence of property

The Right of private defence of property commences when a reasonable apprehension of danger to the
property commences.

The right of private defence of property against theft continues till the offender has effected his retreat with
the property or either the assistance of the public authorities is obtained, or the property has been
recovered.

The right of private defence of property against robbery continues as long as the offender causes or
attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or
of instant hurt or of instant personal restraint continues.

The right of private defence of property against criminal trespass or mischief continues as long as the
offender continues in the commission of criminal trespass or mischief.

The right of private defence of property against house-breaking by night continues as long as the house-
trespass which has been begun by such house-breaking continues.

Section 106: Right of private defence against deadly assault when there is risk of harm to innocent
person

If in the exercise of the right of private defence against an assault which reasonably causes the
apprehension of death, the defender be so situated that he cannot effectually exercise that right without
risk of harm to an innocent person, his right or private defence extends to the running of that risk.

Illustration

JUDICIAL PERSPECTIVE OF A POLICE OFFICER

It may be useful in this context to take stock of certain observations made by the Apex Court regarding
the position of a Police officer both at the entry stage and thereafter:

"The Police force is a disciplined force. It shoulders the great responsibility of maintaining law and order
and public order in the society. People repose great faith and confidence in it. It must be worthy of that
confidence. A candidate wishing to join the Police force must be a person of utmost rectitude. He must
have impeccable character and integrity. A person having criminal antecedents will not fit in this category.
Even if he is acquitted or discharged in the criminal case, that acquittal or discharge order will have to be
examined to see whether he has been completely exonerated in the case because even a possibility of his
taking to the life of crimes posses a threat to the discipline of the Police force". (vide para 35
of  Commissioner of Police v. Mehar Singh (2013) 7 SCC 685).

"It is not the duty of the Police Officers to kill the accused merely because he is a dreaded criminal.
Undoubtedly, the Police have to arrest the accused and put them up for trial. The Supreme Court has
repeatedly admonished trigger – happy Police personnel who liquidate criminals and project the incident as
an encounter. Such killings must be deprecated. They are not recognized as legal by our criminal justice
administration system. They amount to State – sponsored terrorism. But, one cannot be oblivious of the
fact that there are cases where the Police, who are performing their duty, are attacked and killed. In such
circumstances, while the Police have to do their legal duty of arresting the criminals, they have also to
protect themselves. Unless unimpeachable evidence is on record to establish that their action is
indefensible,  mala fide  and vindictive, they cannot be subjected to prosecution. Sanction must be a
precondition to their prosecution". (vide para 42 of  Om Prakash v. State of Jharkhand (2012) 12 SCC 72).

"The Police has not come out of its colonial image. Despite 6 decades of independence the Police is largely
considered as a tool of harassment, oppression and surely not considered a friend of the public". (vide para
5 of  Arnesh Kumar v. State of Bihar (2014) 8 SCC 273).

"This Court has in recent times come across far too many instances where the Police have acted not to
uphold the law and protect the citizens but in aid of a private cause and to oppress the citizen. It is a trend
that bodes ill for the country and it must be promptly checked." (vide para 10 of  Inder Singh v. State of
Punjab (1995) 3 SCC 702).

No doubt, at the same time, we should not ignore the functional constraints confronted by the
investigating Police officers and the phenomenal apathy of the members of the public to co-operate with
the Police. The thin strength of Police personnel in the Police stations and the multifarious duties
assigned to them and the lack of scientific gadgets and training make their task more difficult. All these
aspects for and against the vigilante killers can be counterpoised only in the course of a fair trial.

TIMELY OBSERVATION BY THE C J I

Mr. Justice S. A. Bobade, the present Chief Justice of India was making a very pertinent statement when
he said that doing justice by holding trial is not taking instinctual revenge on the wrongdoer and that the
process of trial takes time. Justice, after a trial, may be slow but is fortified by the procedure established
by law. I recall here the response from a former Judge of the High Court of Kerala expressing his
disagreement with the above statement of the Chief Justice of India. All that I can say is that we have
long forsaken the "eye for an eye and tooth for a tooth justice". Retribution is not the policy of a civilized
society death penalty may undoubtedly be a condign punishment for gang rape and murder. But, how
many cases qualify for the "rarest of the rare"  ? There is no dearth of gang rape and murder cases in our
country. What is lacking in most of the cases is the fool-proof identity of the culprits. Experience shows
that false implication is not a rare occurrence in our country. Even among the so-called eye witnesses,
how many of them are really truthful ? There are carpetbaggers and scalawags among witnesses who
turn out to be cunning performers in the witness box easily swayed by partisan, political, communal or
plutocratic stimuli. With what moral fortitude can a Judge send a person to the gallows on the strength of
evidence which may be open to doubt ? Of course, unmerited acquittals lead to cynicism of the legal
process. But then, who is to be blamed for that ? We have to curse ourselves. How many among us are
prepared to single out, ostracize and ensure punishment of the erring members in our midst ? Far from
doing that, we salvage them with a trade union zeal. This is the bane of our system. Justice H.R. Khanna
was not uttering any non sense when he expressed the impact of wrongful punishment in the following
words:-

"Suppose an innocent person is convicted of the offence of murder and is hanged, nothing further can undo
the mischief, for the wrong resulting from the unmerited conviction is irretrievable. To take another
instance, if an innocent person is sent to jail and he undergoes the sentence, the scars left by the
miscarriage of justice cannot be erased by any subsequent act of expiation. Not many persons undergoing
the pangs of wrongful conviction are fortunate like dreyfus to have an Emile Zola to champion their cause
and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuing as far as
possible, that there should be no wrongful convictions of an innocent person".