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CUSTODIAL DEATHS AND ROLE OF JUDICIARY

Custodial death is a one of the worst crimes during a civilized society dominated by Rule of Law. Does a citizen shed off his fundamental right to life, moment a policeman arrests him? Will the correct to lifetime of a national be place abeyant on his arrest? 

Custodial death is a one of the worst crimes during a civilized society dominated by Rule of Law. Does a citizen shed off his fundamental right to life, moment a policeman arrests him? Will the correct to lifetime of a national be place abeyant on his arrest? The answer, indeed, needs to be an emphatic, “No.” In India where rule of law is inherent at each and every action and right to life and liberty is prized fundamental right adorning the highest place amongst all important fundamental rights, instances of torture and using third degree methods upon suspects throughout illegal detention and police remand casts a slur on the very system of administration.

Custodial torture is universally control collectively of the cruellest kinds of human rights abuse. The Constitution of India, the Supreme Court, the National Human Rights Commission (NHRC) and also the United Nations forbid it. However, the police across the country defy these institutions.

Therefore, there is a demand to strike a balance between the individuals human rights and social interests in combating crime by using a realistic approach (Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260)[1]

 

RECENT INCIDENT

The recent death of a father-son duo from Tamil Nadu , allegedly due to custodial violence, has sparked anger across India. Custodial violence primarily refers to violence in police and judicial custody. It includes death, rape and torture. What has happened in Tamil Nadu’s Tuticorin is worse than some of the most violent cases India has witnessed.

 A father and son – P Jeyaraj, 58, and his son Fenix, 38 -running a mobile accessory shop in Sathankulam town in Tuticorin district were arrested by some policemen allegedly for keeping the shop open past permitted hours. Tamil Nadu has imposed a strict lockdown to curb COVID-19.

The duo was taken to the police station where, as has been alleged by the family members, they were brutally assaulted. A few days later they were pronounced dead in jail. Hence, section 176 Criminal Procedure Code was amended and a special procedure created for investigating custodial deaths.

LANDMARK JUDGEMENTS ON CUSTODIAL DEATH

  • Joginder Kumar v. State Of U.P and Others 1994 AIR 1349: 1994 SCC (4) 260

The rights are inherent in Articles 21 and 22(1) of the Constitution and require to be recognised and conscientiously protected. For effective enforcement of those fundamental rights, Hon’ble Court issued the following guidelines: The police officer shall inform the arrested person once he’s delivered to the police station of this right. An entry shall be required to be created 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. It was further directed that, it will be the duty of the magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.

  • Prabhavathiamma v/s The State of Kerala & Others WP(C). NO. 24258 OF 2007 (K) AND CRL. R.P.2902 OF 2007 [1]

The two serving police personnel were awarded the death sentence by a CBI court, after hearing the case for over a decade, in Thiruvananthapuram, over the death of a scrap metal shop worker, who the court believes was murdered in custody. While sentencing the two, judge J Nazar had said: “This might be a brutal and cowardly murder by accused (number) one and two… The acts of the accused persons would undoubtedly adversely have an effect on the terribly institution of the police department… If the faith of the people among the institution is lost, that will have an impact on the final public order and law and order, and it’s a dangerous scenario.

  • Munshi Singh Gautam v State of Madhya Pradesh, Appeal (Crl.) 919 of 1999[2]

Summarizes their grief concern concerning this downside of torture in Indian, prisons by the police. The supreme court expressed that: “The dehumanising torture, assault and death in custody that had assumed terrible proportions raise serious questions about the believability of the rule of law and administration of the criminal justice system… the concern that was shown in Raghbir Singh case quite twenty years back looks to possess fallen on deaf ears, and also the state of affairs doesn’t appear to be showing any noticeable amendment. The anguish expressed within the cases of Bhagwan Singh v State of Punjab, Pratul Kumar Sinha v State of state, Kewal Pati v State of UP, Inder Singh v. State of Punjab, State of MP v Shyamsunder Trivedi and the by now celebrated decision in the landmark case of D K Basu vs. State of seems, ‘not even to have caused any softening of attitude in the inhuman approach in dealing with persons in custody’.”

  • Yashwant And Others v. State of Maharashtra (2018) 4MLJ (Crl)10(SC)[3]

The Supreme Court on Sept 4 upheld the conviction of 9 Maharashtra cops in connection with a 1993 custodial death case and extended their jail terms from three to seven years each. Reportedly, a bench of Justices NV Ramana and MM Shantanagoudar upheld the order and said that incidents that involve the police tend to erode people’s confidence within the criminal justice system. Whereas enhancing the sentence of the cops, the apex court same, “With great power comes greater responsibility,”. The police personnel were found guilty under Section 330 of the Indian penal code which involves voluntarily causing hurt to extort confession or to compel restoration of property.

 

 

OUTRAGE ACROSS THE NATION ON CUSTODIAL DEATH

On social media following the incident, hashtags such as #JusticeForJayarajAndBennix and #JusticeForJayarajAndFenix started trending. Almost all the major political leaders of the country tweeted demanding an end to the present style of police brutality and severe punishment for the offenders in khaki. Film stars, celebrities and cricketers too prominently voiced their concern on social media. There is additionally also outrage that the policemen believed to be answerable for the deaths aren’t being charged with murder and are just transferred or suspended.

REMEDIES AGAINST CUSTODIAL TORTURE

The two approaches are legal regime and judicial precedents.

  1. CONSTITUTIONAL SAFEGUARDS

It has been held in a catena of judgement  just because a person is in police custody or detained or under arrest, does not deprive of him of his basic fundamental rights and its violation empowers the person to move the Supreme Court under Article 32 of the Indian Constitution.

  • Article 20 of the Constitution of India

Article 20 primarily gives the person the rights against conviction of offences. These include the principle of non-retroactivity of penal laws (Nullum crimen sine lege) ‘No crime, no punishment without a previous penal law”, Article 22 of the Rome Statute of the International Criminal Court i.e. ex-post facto laws thereby making it a violation of the persons fundamental rights if attempts are made to convict him and torture him as per some of the statute. Article 20 also protects against double jeopardy (Nemo Debet Pro Eadem Causa Bis Vexari) No one ought to be twice troubled or harassed [if it appears to the court that it is] for one and the same cause This Article most importantly protects the person from self-incrimination. The police subject a person to brutal and continuous torture to make him confess to a crime even if he has not committed the crime.

  • Article 21 of the Constitution of India

This article has been understood within the Indian judiciary to protect the right to free from torture. This view is held as a result of the proper to life is over an easy right to live an animalistic existence. The expression, “life or personal liberty” in Article 21, includes a guarantee against torture and assault even by the State and its functionaries to someone who is taken in custody and no granting immunity is pleaded against the liability of the State arising due to such criminal use of force over the captive person.( D.K.Basu v. State of W.B, (1997) 1 SCC 416).[1]

  • Article 22 of the Constitution of India

Article 22 provides with four basic fundamental rights with regard to conviction. These include being informed on the grounds of arrest, to be defended by a legal practitioner of his choice, preventive detention laws and production before the nearest magistrate within 24 hours of arrest of the person. Thus, these provisions are designed to confirm that an individual isn’t subjected to any mistreatment that’s devoid of statutory backing or surpasses prescribed excesses.

  1. OTHER STATUTORY SAFEGUARDS
  • Indian Evidence Act, 1872

A confession to police officer can’t be proved as against the person accused of any offence (Sec. 25 evidence Act) and confession caused by threats from the person in authority in order to avoid any evil of a temporal nature would be irrelevant in criminal proceedings as, inter-alia, provided in Sec. 24. Thus, even though custodial torture isn’t expressly prohibited by law in India, the proof collected by illegal means, together with torture is not accepted in courts in India.

  • Code of Criminal Procedure, 1973

Under Sec 46 associated 49 of the Code shield those below custody from torture who don’t seem to be defendant of an offence punishable with death or imprisonment for life and additionally throughout escape. Under Sec. 50-56 are in consonance with Article 22. Under Sec.54 of the Code could be a provision that to a major extent corresponds to any infliction of custodial torture and violence. In line with it, once associate allegation of maltreatment is formed by an individual in custody, the magistrate is then and there needed to look at his body and shall place on record the results of his examination and reasons thus It provides them the correct to bring around the Court’s notice any torture or assault they’ll are subjected to and have themselves examined by a caregiver on their own request A countervailing mechanism has additionally been utilized by courts. Once the jurist doesn’t follow procedure with relevancy abusive grievance of tutelary torture, it implies interference by the supreme court below Sec. 482 of the Code. Another important provision with relevancy custodial torture resulting in death is Sec. 176 of the Code wherever a mandatory magisterial inquiry is to require place on death of associate defendant caused in police custody. Sections 167 and 309 of the Code have the thing of transferal the defendant persons before the court so safeguard their rights and interests because the detention is below their authorization.

  • Indian Police Act

Sections 7 and 29 of the Act give for dismissal, penalty or suspension of police officers who are negligent within the discharge of their duties or unfit to perform the same. This will be seen within the light of the police officers violating along with constitutional and statutory safeguards  along with  guidelines given.

  • Indian Penal Code (IPC), 1860

After the controversial (Mathura Rape case (1979) 2 SCC 143), an amendment was brought about in Sec. 376 of the IPC. Sec. 376(1)(b[2]) penalises custodial rape committed by cops. This was a welcome change created to the section in question as it finally condemns the acts of cops who take advantage of their authority. Sections 330, 331, 342 and 348 of the IPC have ostensibly been designed to deter a police officer, who is empowered to arrest an individual and to interrogate him throughout investigation of an offence from resorting to third degree methods causing, ‘torture’ under it.

 

Conclusion:

  • Police Reforms: Guidelines should also be formulated on educating and training officials involved in the cases involving deprivation of liberty because torture cannot be effectively prevented till the senior police wisely anticipate the gravity of such issues and clear reorientation is devised from present practices.
  • Access to Prison: Unrestricted and regular access to independent and qualified persons to places of detention for inspection should also be allowed.
  • CCTV cameras should be installed in police stations including in the interrogation rooms.
  • Surprise inspections by Non-Official Visitors (NOVs) should also be made mandatory which would act as a preventive measure against custodial torture which has also been suggested by Supreme Court in its landmark judgment in the DK Basu Case in 2015.
  • Implementation of Law Commission of India’s 273rd Report: The report recommends that those accused of committing custodial torture – be it policemen, military and paramilitary personnel – should be criminally prosecuted instead of facing mere administrative action establishing an effective deterrent.

https://indiankanoon.org/doc/768175/

[1]  https://indiankanoon.org/doc/539145/  J. Prabhavathiamma v/s The State of Kerala & Others WP(C).  NO. 24258 OF 2007 (K) AND CRL. R.P.2902 OF 2007

[2] https://indiankanoon.org/doc/1102670/  Munshi Singh Gautam v State of Madhya Pradesh, Appeal (Crl.) 919 of 1999

[3] https://indiankanoon.org/doc/29693305/  Yashwant And Others v. State of Maharashtra (2018) 4MLJ (Crl)10(SC)

[1]  D.K.Basu v. State of W.B, (1997) 1 SCC 416). https://www.google.com/amp/s/www.lawnn.com/supreme-court-india-judgement-d-k-basu-v-state-west-bengal/amp/

[2]  https://indiankanoon.org/doc/1092711/  Mathura Rape case (1979) 2 SCC 143

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