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CUSTODIAL VIOLENCE: POLICE UPHOLDER OR VIOLATOR OF LAW?

By: Shubham Singh* |





In the light of recent events which transpired on the night of June 19, 2020, a father-son duo named Jayaraj P and J Benicks in Tamil Nadu who kept a shop open after COVID-19 curfew hours died in custody, allegedly after being tortured at the hands of the Sattankluam police station in Thoothukudi district.


So, the first question which comes to our mind after looking at this brutal act is, whether Police have any sort of authority to use physical power upon the arrested person?


In Kishore Singh v. State of Rajasthan [i] Krishna Iyer J. had observed, “Nothing is more cowardly and unconscionable than the person in police custody being beaten up and nothing inflicts a deeper wound on our constitutional culture than a State official running berserk regardless of human rights”.


Power has the tendency to make men go dizzy and the Policemen are no exception to it. Police have been entrusted with the power to maintain law and order and protect people effectively but sometimes it’s the police only who misuses this power in order to satisfy their greed or sometimes even to satisfy their ego. Police in order to close the investigation on time, tortures the arrested person or sometimes force the arrested person or an accused to make the confession of his alleged crime which is strictly prohibited by law. As per Section 25 of the Indian Evidence Act, “every confession made in front of the Police officer will become inadmissible in court”-we will discuss this part later in this article. An offender has every right to be treated with human dignity. Every offender has a right to be tried and punished according to the guidelines and procedure set by law, and any power exercised which is outside of the ambit of law is illegal.


The Supreme Court in Raghubir Singh v. State of Haryana [ii], held that “We are deeply disturbed by the diabolical recurrence of police torture resulting in terrible scars in the minds of common citizens that their lives and liberty are under a new peril because the guardians of the law destroy human rights.”



Protection against Police torture under Indian Laws


i) Right to Life


Article 21 of the Indian Constitution says that the life and personal liberty of any person cannot be taken away except according to the procedure established by law[iii]. Though Article 21 has not clearly provided any sort of protection against the police torture but time and again the Apex Court has interpreted it widely and maximized its scope to the extent that it has covered almost every action of the executive and now acts as a watchdog on every procedure which the police and other executives follow in order to perform their duty.


In Maneka Gandhi v. Union of India [iv] Supreme Court held that the procedure contemplated in Article 21 must be ‘right’ ‘just’ and ‘fair’ and not ‘fanciful’, ‘arbitrary’ and ‘oppressive’ otherwise it would be no procedure at all and mandate of Article 21 would not be fulfilled.


In Kharak Singh v. State of U.P. [v] the Apex Court held that Right to Life under Article 21 does not mean only animal existence but also the possession of each and every organ of the body. Thus, Police have no right to touch any body part of the person arrested in order to interrogate him about the act which he has done.


State of Punjab v. Balbir Singh [vi] case declared that if an arrest has been made in violation of the statutory provisions regulating arrests then it is an illegal arrest because it is not in accordance with the procedure established by the law that the arrest has been made. Thus, it may be a violation of Article 21 of the Constitution also.



ii) Right to be informed of the ground for arrest


As Per Article 22(1) of the Constitution of India, every person who is arrested has the right to be informed of the ground of his arrest.[vii] Every arresting authority is bound to inform the arrested person whether he is being arrested with or without a warrant of the ground of his arrest. However, a police officer or arresting authority is not obliged to provide full details of the alleged offence before arresting any person; only sufficient particulars are required to be furnished to enable the arrested person to understand why he has been arrested.



iii) Right to be produced before Magistrate within 24 Hours


Article 22(2) of the Constitution provides that every person who is arrested has the right to be produced before the nearest magistrate within 24 hours of the arrest. It provides an exclusive right to the arrested person and hence it is a very important and valuable right of the arrested person constitutionally guaranteed under the said Article[viii].


Section 57 along with Section 167 of the Code of Criminal Procedure, 1973 also require Police to produce the arrested person within 24 hours of his/her arrest before the nearest Magistrate. The Magistrate after going through the accusation which has been made against the arrested person either releases him on bail or remands him in police custody in order to facilitate the further investigation. The maximum remand to police custody is 15 days.[ix]


If the police do not produce the arrested person before the Magistrate within stipulated time then any person who is related to the arrested person can file the writ of Habeas Corpus under Article 226 of the Constitution of India before the High Court or under Article 32 before the Supreme Court of India. As it is the duty of the State to provide compensation to the persons whose fundamental right has been violated by the Government servants who are acting on behalf of the Government. In Bhim Singh v. State of J. K. [x] wherein petitioner Bhim Singh was kept in the police lockup for four days without his production before the Court, the Hon'ble Apex Court held that the constitutional rights of the petitioner were violated with impunity and compensation of Rs.50, 000/- was awarded to be paid to the petitioner by the State Government. Similarly, in Justice K.S. Puttaswamy v. Union of India[xi] their lordship held that it needs to be ascertained in every case as to whether the actions of the officers were in breach of the fundamental rights or any provision say provided under Article 21 of the Constitution of India. If the Court comes to the conclusion that the action was not in accordance with the law and illegal, the Court is bound to give compensation.



iv) Right Against self- incrimination


As per criminal justice system- ‘Every person is presumed to be innocent until proven guilty’ but unfortunately our Police officers sometimes forget this principle and they presume themselves to be the god of our existing criminal laws as well as the Indian Constitution. In order to extract the confession from the arrested person for the crime he is alleged to have been committed, they torture him. As per Article 20(3) of the Constitution of India “no person who is accused of any offence shall be compelled to give witness against himself”.[xii] Section 163 of the Code of Criminal Procedure, 1973 provides that “no police officer or other person in authority shall offer any inducement, threat and promise”[xiii]- which has been mentioned in Section 24 of the Indian Evidence Act which says that a confession made by an accused person in a criminal proceeding is irrelevant if it appears to the court that the confession was made under any inducement, threat & promise.[xiv] The accused cannot be compelled to make any confession against his will otherwise it will be against the principle of ‘Right to a fair trial’ which is the foremost principle of our criminal justice system which says that every person is presumed to be innocent until proven guilty and the burden of proof is on the prosecution to prove the guilt of the accused. So the Police officer is nowhere allowed to prove the guilt of the accused by using illegal means such as torture, duress, intimidation. The duty of the police officer is to assist the prosecution through their investigation but they cannot go beyond that and try to prove the guilt of an accused person by their own illegal methods.



Judicial pronouncements


State of Uttar Pradesh v. Ram Sagar Yadav and others [xv]

The Apex Court has proceeded to take a note of the fact that at the point of time when a person is in custody and he is subjected to any atrocity, then, the police officials or any other authorized person alone and no one else can give evidence as regards to the circumstances in which a person in their custody has been made to receive injuries while being in their custody.


Nilabati Behera @ Lalit Behera v. State of Orissa and others [xvi]

The Apex Court proceeded to take view that even convicts, prisoners and under-trials have right under Article 21 and once an incumbent is taken into custody and there are injuries on his body, then State will have to explain as to how he sustained the injuries, and compensation can be awarded under public law remedy.


D.K. Basu v. State of West Bengal [xvii]

It dealt with the issue of custodial violence, and has clearly ruled that interrogation through essentials must be on scientific principles; third-degree methods are impermissible and a balanced approach should be adopted so that criminals do not go unpunished. The guidelines have been issued and the same is holding the field, even as on date, in addition to constitutional and statutory safeguards.



Conclusion


Extra-judicial killings and custodial violence are not at all legally as well as morally valid. Our society works according to the proper legal guidelines and all our ethical and moral values should be solely according to the said legal guidelines. No one in our country is allowed to take law in their hands whether the person is a lawmaker or some law enforcement agencies; everyone is obliged to follow laws and perform their duty as per the existing legal system. The already existing legal provisions have failed to a large extent in controlling the custodial violence and inhuman treatment by Police which is grossly derogatory to the dignity of a human person. So, some strict measures are required to curb the problem of custodial violence. India has already ratified Article 7 of International Covenant on Civil and Political Rights (ICCPR) in Article 21 the Indian Constitution[xviii] which talks about right to protection against torture[xix] but it has failed to ratify the United Nation Convention Against Torture (UNCAT). The Prevention of Torture bill is a long standing bill which people are awaiting.[xx] It was first passed in the year 2010 by Lok Sabha but Rajya Sabha had referred it to a certain committee which proposed that certain amendments should be made. The bill lapsed due to dissolution of the Lok Sabha. Again, in the year 2018 the bill was introduced in the Lok Sabha after introducing it in Rajya Sabha in 2017 as a private member bill but again this time it lapsed due to dissolution of LokSabha. So, after looking through the current scenario of the country it is very much important that the said bill must be passed in the ongoing Lok Sabha so as to mitigate the problem which has become an everyday affair in the country. The government should seriously take the 113th Law Commission report[xxi] and amend the Indian Evidence Act accordingly so as to put the onus on Policemen to prove their innocence if the arrested person has suffered injuries while being taken under police custody.


***


* The author is an Associate Advocate at P P Hegde & Associates, Bangalore and has graduated from Damodaram Sanjivayya National Law University, Vishakhapatnam.



[i] (1981) 1 SCC 503 [ii] (1980) 3 SCC 70 [iii] Article 21, Constitution of India, 1950 [iv] (1978) 1 SCC 248 [v] AIR 1978 SC 1259 [vi] (1994) 3 SCC 299 [vii] Article 22(1),Constitution of India,1950 [viii] Article 22(2), Constitution of India 1950 [ix] Section 57, Code of Criminal Procedure, 1973 [x] AIR 1986 SC 494 [xi] (2017) 10 SCC 1 [xii] Article 20(3), Constitution of India,1950 [xiii] Section 163, Code of Criminal Procedure,1973 [xiv] Section 24, Indian Evidence Act, 1872 [xv] (1985) 1 SCC 552 [xvi] (1993) 2 SCC 746 [xvii] (1997) 1 SCC 416 [xviii] Article 21, Indian Constitution, 1950 [xix] Article 7, International Covenant on Civil and Political Rights (ICCPR) [xx] SC directs all States, UTs to send replies on Torture Bill within 3 weeks available at https://thewire.in/law/sc-directs-all-states-uts-to-send-replies-on-torture-bill-within-three-weeks [xxi] Law Commission of India “one hundred and thirteenth report on injuries in police custody” available at http://lawcommissionofindia.nic.in/101-169/Report113.pdf



Image Source: https://www.newindianexpress.com/cities/bengaluru/2018/nov/03/most-people-dislike-men-in-khaki-survey-1893732.html






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