CUSTODIAL DEATHS AND ROLE OF JUDICIARY: A CRITICAL ANALYSIS
Author: Abhinav Pandey, II year of B.A.,LL.B.(Hons.) from University of Lucknow
The Indian Constitution has bestowed upon its citizen some fundamental rights. These fundamental rights ensure certain basic rights and liberties to the citizens without discrimination. The prisoners or the accused in custody are similarly entitled to some of these fundamental rights. The Universal Declaration of Human Rights, 1948 envisages that it is the obligation and responsibility of each and every welfare state to protect these rights of the citizens. Custodial deaths have been heavily criticized by the citizenry and shaken their belief in democracy. It has been marked as one of the most brutal crimes in a democratic society governed by the Rule of law. Custodial death is an illegal act, where demising of person takes place and such accused is under the custody of police, which may be brought in the occasion of being under trial or police have suspected that such person have committed cognizable and Non- Bailable offence. Custodial death is like a black spot-on whole police department. Usually, custodial death take place where police is conducting investigation of such offence. In present scenario everybody wants name, fame and money in minimum period of time, which make them ready to choose wrong path, same way, it seems many time police tortured accused under his custody to confess such offence, which cause police officer get promoted on the basis of solving cases or their previous record. The figures of National Human Rights Commission (NHRC) show a total of 894 deaths in Judicial Custody.The letter, signed by the joint registrar Law of the National Human Rights Commission, stated that Uttar Pradesh leads the chart of deaths in Judicial custody by a significant margin, with 204 Deaths recorded in the period between 1 January 2017 and 2 August, 2017. The state was followed by Punjab with 76 deaths and Bihar with 64 deaths.Needless to say, a large number of custodial violence incidents go unreported.
Causes of Custodial Death
The main aim of Criminal Judicial System is to find out the actual person behind the crime, that’s why police were made so that they provide safeguardsand protection to their people and that’s an only reason, they have authority to do interrogation and investigation, so that victim will get justice through court with the help of police in finding out the evidence and when these powers are starting use in adverse way then it can be say it will be destruction of human kind and society. Causes of Custodial death are:
1. Police know only language of force they never adopt other method while conducting interrogation
2. No proper treatment, medicine provided to arrested person in the lockup
3. Feeling of hatred in the eyes of people in the society as well as police, they never trying to understand that accused is still innocent until it is not proved guilty by the court and this emotion support police officer exceed his right to use force which itself is illegal.
4. As police officer is filled with burden to solve the cases as soon as possible so that they work on next case, which resulted lack of patient and tried to impose their will on arrested person so that, arrested person givestatement according to them.
5. At the time of conducting interrogation, they never respect the law of human rights sometimestheir aggression seems that they even forget to identified that person who is Infront of him is also a human being.
In the case of a cognizable offense, it is the apprehension of a suspect for the police officer to gather more details. Another objective of police custody is to avoid evidence tampering. During this time, the arrestee will be interrogated by the officer in charge. According to Section 57 of The Code of Criminal Procedure, 1973, the person who is arrested should be produced before the Magistrate within 24 hours. However, the time for the journey from the place of arrest to the Magistrate does not include in the prescribed minimum time 24 hours.
When a person is first arrested due to an Fist Information Report (FIR) lodged in the police station and is accused of a cognizable offence, he is brought before the magistrate within 24 hours. The magistrate decides whether to release him on bail or send him to judicial custody or police custody. The period of judicial custody can extend upto 90 days in the cases which involve the death penalty as punishment, imprisonment for life, or imprisonment for Ten years or more. If a person is in judicial custody and the investigation is still going on and the charge sheet has not been filed by the police within 60 days if the offence has imprisonment for Ten years or less than Ten years and within 90 days for offences having imprisonment for Ten years or more, and he has not applied for bail, he will continue to be in custody. According to Section 436A of Criminal Procedure Code, 1973 if a person is in judicial custody for half of the maximum punishment that could be awarded for the offence and the trial is pending in the court, he is eligible to apply for default bail.
Custody and judicial remand under CrPC in India
Article 22(2) of the constitution of India provides that any person arrested and detained in custody must be produced before the nearest magistrate within 24 hours of his arrest and no person can be detained beyond the period of 24 hours without the authority of the magistrate. Similarly, section 57 of the Code of Criminal Procedure, 1973 (CrPC) states that the police officer who arrests a person without a warrant shall not detain him in his custody for more than 24 hours without the special permission of a magistrate under section 167 of the CrPC. This special permission referred to in Section 57 is known as remand or pre-trial detention. The word remand generally means to return or to send back but, in the legal world, it has two different meanings. Firstly, it means to send the accused back in the custody of the competent authority and secondly, it means to send back the cases from the appellate court to the lower court. The power of a court to remand an accused to custody is governed by a number of provisions of the CrPC, these being Sections of these 167(2), 209(b) and 309(2). Each provisions is independent of each other and come into play at different stages of the criminal trial. The remand under Section 167(2) relates to the stage of investigation and is ordered for furthering the investigation and can be either in judicial custody or police custody. The remand under S.209(b) relates to the stage when the magistrate commits the case, he can remand the accused to the custody during and until the conclusion of the trial subject to the provisions of bail under the code and finally remand under Section 309(2) relates to a stage after cognizance and can only be sent to judicial custody. It has been held in the case of State rep. by Inspector of Police and ors. v. N.M.T. Joy Immaculate1, that the remand under Section 209(b) and Section 309(2) of CrPC is for securing the presence of the accused during the trial.
Deaths in Police Custody
Uttar Pradesh reported a total of 952 cases 451 in 2020 and 501 in 2021 in the past 2 years, Bengal registered 442 185 in 2020 and 257 in 2021 during this period. With 396 cases, Bihar reported the third highest custodial deaths in two years 159 in 2020 and 237 in 2021.Overall, 1,940 cases of custodial deaths were registered in 2020 and 2,544 in 2021. In the south, Tamil Nadu reported a sharp jump in one year. While the state reported 63 cases in 2020, the figure rose to 109 the following year.The northeastern reported lesser custodial deaths in the past two years. Manipur, Mizoram, Nagaland, Arunachal Pradesh and Tripura reported less than 10 cases during this period. Goa and Karnataka in the south did not report more than 10 cases in the two years. The Union territories of Lakshadweep, Ladakh, Daman and Diu and Dadar and Nagar Haveli reported zero cases. On deaths due to police encounters. A total of 82 cases were reported in 2020 and 151 cases were registered in 2021. With 54 cases in the last two years, Chhattisgarh topped the chart in this regard. Jammu and Kashmir ranked second (five in 2020 and 50 in 2021) followed by Uttar Pradesh (16 in 2020 and 11 in 2021).
Landmarks Judgement 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 scrupulously protected. For effective enforcement of these fundamental rights, Hon’ble Court issued the following guidelines:
The police officer shall inform the arrested person when he is brought to the police station of this right. 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. It was further directed that, it shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with.
State of U.P v. Ram Sagar Yadav
In the following case, a farmer falsely accused of cattle trespass by his neighbor over a dispute was allegedly threatened for bribes by the concerned police officer, who then, at first, relented but then reported this incident to the police station, which as a response appointed another officer to inquire into the farmer’s allegation against the officer. The police officer in charge of the inquiry arrested the farmer and tortured him severely; within 6 hours of registering the initial case, the farmer then succumbed to his injuries and died. This matter was then taken up by the Apex court, which then acknowledged the advent of custodial death and torture as well as the indemnity enjoyed by police officials, saying, Police officers alone and none else can give evidence regarding the circumstances in which a person in their custody comes to receive injuries. Bound by the ties of brotherhood, they often prefer to remain silent in such situations, and when they choose to speak, they put their own gloss upon facts and pervert the truth.
J. Prabhavathiamma v. the State of Kerala and others, 2007
The case pertained to the death of a scrap metal shop worker in custody in Thiruvananthapuram. The hearing of the case lasted for a decade and the CBI Court ultimately sentenced the two accused serving personnel to the death penalty. Justice Nazar remarked that the police officers have brutally murdered the victim and have adversely affected the reputation of the police institution. The judge also held that such heinous acts cannot be pardoned because they will affect the law and order and it would encourage police officers to exercise their power arbitrarily. Death sentence is a kind of punishment that is rarely awarded but in this particular case, the Bench adjudged on the basis of gravity of the offence committed and by awarding death sentence, set a precedent to prevent such activities in the future
Yashwant And Others v. State of Maharashtra (2018) 4MLJ (Crl)10(SC)
The Honourable Supreme Court on September 4 upheld the conviction of nine 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 which involve the police tend to erode people’s confidence in the criminal justice system. While enhancing the prison term of the cops, the apex court said, “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.
Conclusion and Suggestions
Torture continues to remain a preferred tool in the hands of the law-enforcing authorities to extract information and confessions or to oppress the marginalized sections of society. The Police force in India, enjoy great impunity and all Governments prefer not to set precedence by handing out exemplary punishments to the culpable officers for the simple reason that the running of any Government depends greatly on the law-enforcing authorities. The Solution to the problem of Custodial deaths as such lies in measures to prevent custodial torture, in fact, such violence itself, and reduce the number of custodial deaths to the extent possible in other circumstances by evolving efficient systems and procedure for prompt and adequate medical aid, where required, and reasonable preventive measures against accidents and suicide.
4. Joginder Kumar v. State Of U.P and Others 1994 AIR 1349: 1994 SCC (4) 260
5.State of U.P v. Ram SagarYadav
6. J. Prabhavathiamma v. the State of Kerala and others, 2007
7.Yashwant And Others v. State of Maharashtra (2018) 4MLJ (Crl)10(SC)
10.Oxford English dictionary