CUSTODIAL DEATH
1. Police lock-up or death trap ? Police lawlessness or rule of
law ? Police muscle or personal modesty ? Police harassment or
human rights ? Yet again a case of custodial death has given rise
to myriad hard-touching and soul searching questions. In this
country where rule of law is inherent in each and every action
and right of life and liberty is prized fundamental right adorning
highest place amongst all important fundamental rights, whether
life has no meaning to a person in police custody ? Whether personal
modesty, decency, dignity on arrest of a person are increasingly
exposed to third-degree practices which over-step the bounds of
propreity ? How long, harsh, crude, oppresssive, excessive and
torturous third-degree methods to the arrested person in the name
of seeking information or investigation can be allowed to continue
? Whether police personnel are custodians of law and order or
law unto themselves and depredators of civil liberties ? Whether
to strip a person of his clothes and making him bare, naked and
employing all sorts of physical and mental torture is not violative
of prized constitutional right enshrined under Article 21 of the
Constitution of India ? Whether police power admits of no human
rights of a person in its custody ? Whether for inhuman acts of
its officers and servants, the State must be made liable for violation
of fundamental rights of its citizens ?
Article 21 of the Constitution of India provides that no person
shall be deprived of his life or personal liberty except according
to the procedure established by law. Art. 22 of the Constitution
of India provides for protection against arrest and detention
in certain cases. Chapter V of the Code of Criminal Procedure,
1973 deals with the arrest of persons. S. 41 makes provision when
police may arrest without warrant. How arrest can be made is provided
under S. 46 of Cr.P.C. S. 47 deals with search of place entered
by the person sought to be arrested and S. 50 provides when person
arrested should be informed of grounds of arrest and of right
to bail. S. 51 makes a provision for search of arrested person.
At the request of the arrested person, he should be examined by
the medical practitioner under S. 54, Cr.P.C. Section 56 provides
that a police officer making an arrest without warrant, shall
without unnecessary delay and subject to the provisions as to
bail take the person arrested before the Magistrate or officer
in charge of Police Station and under S. 57 of Cr.P.C. the person
arrested shall not be detained more than 24 hours by the police
officer in the absence of special order of the Magistrate under
S. 167, Cr.P.C. Chapter XI of Cr.P.C. deals with preventive action
of police and S. 151 makes a provision for arrest to prevent commission
of cognizable offence.
Indiscriminate arrest by the police and violation of human rights
led the Apex Court to consider this aspect in the light of increasing
crime rates and in Joginder Kumar v. State of U.P., AIR 1994 SC
1349 : (1994 Cri LJ 1981), the Supreme Court struck the balance
between the two by observing as under (Para 9) :-
"A realistic approach should be made in this direction. The
law of arrest is one of balancing individual rights, liberties
and privileges, on the one hand, and individual duties, obligations
and responsibilities on the other; of weighing and balancing the
rights, liberties and privileges of the single individual and
those of individuals collectively; of simply deciding what is
wanted and where to put the weight and the emphasis of deciding
which comes first - the criminal or society, the law violater
or the law abider ....."
A compensation of Rs.1.50 lacs was awarded to the next of kin
of the victim of police atrocities.
The State of Maharashtra was directed to constitute a Committee
consisting of its Home Secretary, Law Secretary and Director General
of Police for going into all the aspects of custodial violance
by the police in the State and suggest comprehensive measures
and guidelines to prevent and check custodian violence and death
and also suggest for that purpose suitable amendments in the Police
Manual of the State and also submit comprehensive scheme for police
accountability of human rights abuse. The State Government is
directed to take effective steps in implementing the measures
and guidelines suggested by the Committee in preventing and checking
the custodian violence immediately after submission of report
by the said Committee;
The State Government was further directed to provide a complaint
box duly locked in every police-lockup and the keys of the complaint
box should be kept by the Officer in-charge of the Police Station.
The Officer in-charge of the concerned Police Station should provide
paper and pen to the detainee if so demanded for writing complaint
and the Officer in charge of the concerned Police Station should
open the complaint box every day in the morning and if any complaint
is found in the complaint box, the officer in-charge of the Police
Station should produce such complaining detainee to the Magistrate
immediately along with his complaint and the concerned Magistrate
would pass appropriate orders in the light of the complaint made
for medical examination, treatment, aid or assistance, as the
case may warrant;
The State Government was also directed to issue instructions immediately
in unequivocal and unambiguous terms to all concerned that no
female person shall be detained or arrested without the presence
of lady constable and in no case, after sun-set and before sun-rise;
to make proper provision for female detainee in separate lock-ups
[Christian Community Welfare Council Of India and Another vs.
State Of Maharashtra and Another;1995-(101)-CRLJ -4223 –BOM]
2. Constitution of India - Arts. 32, 142, 226 & 300 - Criminal
Procedure code, 1973 - Sec. 357(5) - International Covenant on
Civil and Political Rights, 1966 - Art. 9(5) - Evidence Act, 1872
- Sec. 106 - Award of compensation from Public Law Proceedings
- Different from private law proceedings - Custodial death - State
liable for compensation to deceased's mother- Principle which
justifies award of monetary compensation for contravention of
fundamental rights guaranteed by the Constitution, when that is
the only practicable mode of redress available for the contravention
made by the State or its servants in the purported exercise of
their powers, and enforcement of the fundamental right is claimed
by resort to the remedy in public law under the Constitution by
recourse of arts. 32 & 226 - The Court is not helpless and
wide powers given to Supreme Court by art. 32, which itself is
fundamental right, imposes a constitutional obligation on Court
to forge such new tools, which may be necessary for doing complete
justice and enforcing the fundamental rights guaranteed in Constitution,
which enable award of monetary compensation in appropriate cases,
where that is only mode of redress available - Power available
to the Supreme Court under art. 142 is also enabling provision
in this behalf - Death in police custody established - Having
regard to deceased aged and monthly income between Rs. 1200 to
Rs. 1500 - Respondent State is directed to pay the sum of Rs.
1,50,000 to the widow
Constitution of India - Arts. 32 & 226 - Remedy in public
law proceedings - The burden is, clearly on the respondents to
explain how the deceased sustained those injuries which caused
his death - Unless a plausible explanation is given by the respondents
which is consistent with their innocence, the obvious inference
is that the fatal injuries were inflicted on the deceased in police
custody resulting in his death, for which the respondents are
responsible and liable.
Enforcement of the constitutional right and grant of redress embraces
award of compensation as part of the legal consequences of its
contravention. Award of compensation in a proceeding under art.
32 by Supreme Court or by the High Court under art. 226 of the
Constitution is a remedy available in public law, base on strict
liability for contravention of fundamental rights to which the
principle of sovereign immunity does not apply, even though it
may be available as a defence in private law in an action based
on tort.'A claim in public law for compensation' for contravention
of human rights and fundamental freedoms, the protection of which
is guaranteed in the Constitution, is an acknowledged remedy for
enforcement and protection of such rights, and such a claim based
on strict liability made by resorting to a constitutional remedy
provided for the enforcement of a fundamental right is 'distinct
from, and in addition to, the remedy in private law for damages
for the tort' resulting from the contravention of the fundamental
right. The defence of sovereign immunity being inapplicable, and
alien to the concept of guarantee of fundamental rights, there
can be no question of such a defence being available in the constitutional
remedy. It is this principle which justifies award of monetary
compensation for contravention of fundamental rights guaranteed
by the Constitution, when that is the only practicable mode of
redress available for the contravention made by the State or its
servants in the purported exercise of their powers, and enforcement
of the fundamental right is claimed by resort to the remedy in
public law under the Constitution by recourse to arts. 32 &
226 of the Constitution. This is what was indicated in Rudul Sah
and is the basis of the subsequent decisions in which compensation
was awarded under arts. 32 & 226 of the Constitution, for
contravention of fundamental rights. Certain further observations
therein adverted to earlier, which may tend to minimise the effect
of the principle indicated therein, do not really detract from
that principle. This is how the decisions of Supreme Court in
Rudul Sah and others in that line have to be understood and Kasturilal
distinguished therefrom.
Constitution of India - Art. 21 - Convicts, prisoners or undertrials
- Their fundamental rights under art. 21 - Obligation of State
to ensure that there is no infringement of the indefeasible rights
of a citizen to life, except in accordance with procedure established
by law, while the citizen is in its custody. Convicts, prisoners
or undertrials are not denuded of their fundamental rights under
art. 21 and it is only such restrictions, as are permitted by
law, which can be imposed on the enjoyment of the fundamental
right by such persons. It is an obligation of the State to ensure
that there is no infringement of the indefeasible rights of a
citizen to life, except in accordance with law, while the citizen
is in its custody. His liberty is in the very nature of things
circumscribed by the very fact of his confinement and therefore
his interest in the limited liberty left to him is rather precious.
The duty of care on the part of the State is strict and admits
of no exceptions. The wrongdoer is accountable and the State is
responsible if the person in custody of the police is deprived
of his life except according to the procedure established by law.
The defence of "sovereign immunity" in such cases is
not available to the State. Adverting to the grant of relief to
the heirs of a victim of custodial death for the infraction or
invasion of his rights guaranteed under art. 21 of the Constitution
of India, it is not always enough to relegate him to the ordinary
remedy of a civil suit to claim damages for the tortious act of
the State as that remedy in private law indeed is available to
the aggrieved party. The citizen complaining of the infringement
of the indefeasible right under art. 21 of the Constitution cannot
be told that for the established violation of the fundamental
right to life, he cannot get any relief under the public law by
the Courts exercising writ jurisdiction. The primary source of
the public law proceedings stems from the prerogative writs and
the Courts have, therefore, to evolve 'new tools' to give relief
in public law by moulding it according to the situation with a
view to preserve and protect the Rule of Law. The old doctrine
of only relegating the aggrieved to the remedies available in
civil law limits the role of the Courts too much as protector
and guarantor of the indefeasible rights of the citizens. The
Courts have the obligation to satisfy the social aspirations of
the citizens because the Courts and the law are for the people
and expected to respond to their aspirations.
Penal Code, 1860 - Sec. 302 - Evidence Act, 1872 - Sec. 45 - Deceased
taken in police custody and found dead next day on railway track
without being released from custody - Burden clearly on respondents
(State) to explain how deceased sustained those injuries which
caused his death - Respondent's plea that deceased escaped from
police custody - Opinion of Professor and Head of Deptt. of Forensic
Medicine, who not examined as witness during inquiry - Being cryptic
and based on conjectures, not acceptable - Deceased in police
custody resulting in his death for which respondent are responsible
and liable
The burden is, clearly on the respondents to explain how the deceased
sustained those injuries which caused his death. Unless a plausible
explanation is given by the respondents which is consistent with
their innocence, the obvious inference is that the fatal injuries
were inflicted on the deceased in police custody resulting in
his death, for which the respondents are responsible and liable.
Criminal Procedure Code, 1973 - Sec. 176 - Custodial death - Inquiry
contemplated independently by magistrate and not jointly with
police officer when role of police officer itself matter of inquiry
- Joint inquiry report in case cannot made u/s. 176 CrPC and cannot
be relied on as statutory report relating to cause of death
Joint inquiry report is stated to have been not made been u/s.176
CrPC and was not strongly relied on by the Additional Solicitor
General as a statutory report relating to the cause of death.
An inquiry u/s. 176 CrPC is contemplated independently by a Magistrate
and not jointly with a police officer when the role of the police
officers itself is a matter of inquiry.
[Nilabati Behera Alias Lalita Behera V. State Of Orissa;1993-(002)-SCC
-0746 -SC
1993-(080)-AIR -1960 –SC;1993-(099)-CRLJ -2899 –SC]
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