LAW OF CRIMES – 3

CODE OF CRIMINAL PROCEDURE, 1973

CUSTODIAL DEATH AND INQUIRY BY JUDICIAL

MAGISTRATE

-SAARAMSH M. S.

1378

BA.LLB (HONS.)
 ACKNOWLEDGMENT

I would like to take this opportunity to express my gratitude and regards to my professor of
criminal law, Dr. Asif E. for his constant mentoring and guidance throughout the project.

I would also like to express my gratitude to National University of Advanced Legal Studies, Kochi
for the valuable information and opportunity to execute this project.

I would further like to thank my friends & family for their everlasting support and encouragement,
without which this assignment would be arduous to implement.

Lastly, I would also like to thank James Howlett who taught me that controlling my temperament
would help me channel my abilities productively.
CONTENTS
ACKNOWLEDGMENT ....................................................................................................................2

CUSTODIAL DEATH AND INQUIRY BY JUDICIAL MAGISTRATE ........................................................4

1. INTRODUCTION..................................................................................................................4

2. JUDICIAL ACTION IN POLICE CUSTODIAL DEATH ..................................................................6

3. CUSTODIAL JURISPRUDENCE ..............................................................................................8

4. CONCLUSION................................................................................................................... 10
 CUSTODIAL DEATH AND INQUIRY BY JUDICIAL MAGISTRATE

-Saaramsh.M.S1

Abstract

This short article shall introduce the unfortunate and gruesome reality of custodial death and
torture which is prevalent in India. It shall further discuss the judicial action that has to be taken
in such cases of custodial atrocities. It shall bring out the 2005 amendment of Section 176 to
change the investigating authority from Executive Magistrate to a Judicial Magistrate. The
article will then discuss the concept of “Custodial Jurisprudence” as laid down by the Hon’ble
Apex Court in the case of D.K. Basu v. State of West Bengal. The article will conclude with an
analysis of all headings as included in the same.

1. INTRODUCTION

Article 5 of the Universal Declaration of Human Rights, dated December 10, 1948 proclaims that
"No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment".
Subsequently, the International Covenant on Civil and Political Rights, 1966 created a treaty-
obligation under Article 7 for the states parties to it that "No one shall be subjected to torture or to
cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected
without his free consent to medical or scientific experimentation".

One needs to examine as to how far India which voted for the Universal Declaration in the General
Assembly of the United Nations, and is a party to the International Covenant of 1966 have
observed these in practice. For, hardly a day passes without the news of police atrocities, torture
and brutality being reported. Increasing frequency of custodial atrocities and its reportings in the
media expose police to severe criticism. Nothing blemishes the image of police more than the
brutality directed against persons in their custody and, no doubt, whenever a hapless victim in
police custody is tortured or killed, human dignity is affronted.

1
Student of the 5th Semester BA.LLB (Hons.) program at the National University of Advanced Legal Studies, Kochi.
India's status of human rights is fairly high under its Constitution which makes provision for
fundamental rights and empowers the Supreme Court of India and the High Courts to enforce these
rights and guide the authorities of the State to respect people's rights. Equally important is the fact
that India has been a signatory to the international conventions on economic, social, cultural, civil
and political rights, with certain conditions. Part IV of the Constitution directs the state to apply
policies and principles in the governance of the country so as to enhance the prospects of
social/economic justice. Article 43 directs the state to secure for workers a living wage, decent
standard of life and social and cultural opportunities. In short, the universe of human rights in India
is still on an expanding horizon.

The laws providing safeguards against excesses are substantial. The Constitution protects the right
to life and personal liberty (Article 21) and other fundamental rights. Although the prohibition of
torture in specific terms lacks constitutional authority, the courts have held that Article 21 implies
protection against torture and that sections 330 and 331 of the Indian Penal Code (IPC) as well as
section 29 of the Indian Police Act specifically forbid the practice. Stringent punishment is
prescribed under section 376 of the IPC for rape in police custody or by the armed forces.

In case of death in custody, an inquiry by a Magistrate is mandatory under section 176 of the
Criminal Procedure Code (CRPC). The right to enforce the human rights provided in the
Constitution is protected through enabling provisions. Article 226 empowers the High Courts to
issue writs for the enforcement of such rights, including habeas corpus. Article 32 of the
Constitution grants the same powers to the Supreme Court. Critics point out that the protection of
these rights on paper is excellent, but at the implementation level there are many shortcomings.
However, some rulings of the higher courts have been able to set things right. Un- der various
provisions of the Terrorist and Disruptive Activities (Prevention) Act (TADA), National Security
Act (NSA), Disturbed Areas Act, etc. several brutal acts are alleged to have been committed on
innocent citizens, either by individuals or the police or the military. 2

2
N. S. Gehlot, The Indian Journal of Political Science, Vol. 55, No. 4 (October - December 1994),pp. 381-390
2. JUDICIAL ACTION IN POLICE CUSTODIAL DEATH

Since all are equal in the eye of law, everyone is liable to punishment without any distinction of
rank, caste and creed.3 Similarly, policemen are also responsible for any offence, committed during
the course of duty. Consequently administrative and judicial actions are taken against police in
cases of custodial death and if found guilty, they are punished like ordinary persons. Till the
amendment in the section 176 of CrPC the inquest or inquiry into the cause of death in case of
death in police custody or in any other custody authorised by the magistrate or the court was held
by the executive magistrates. As we all know that in our system the executive magistrate
(Collector, ADM, SDM, Tahsildar, etc.) & the police are working together for the enforcement of
law and order all over the country. It follows, naturally, that when you have to work together for
prolonged periods of time, a bond can be presumed to have developed resulting in a soft corner for
the police officials involved in the incident, in the eyes of the executive magistrate. This can in
turn affect the inquiry into the occurrence of custodial death or torture. Another reason is that the
Executive Magistrate holds various responsibilities apart from the judicial responsibilities such as
with regard to revenue and administration which sometimes resulted in a delay into the inquiry
procedure by months and at times which extended to years beyond the tenure of a single person
holding the post. Section 176 of the CrPC was amended in 2005 to bring in the change that instead
of an Executive Magistrate holding the inquiry, a Judicial Magistrate would be responsible for the
same. This amendment brought in a flurry of positive breakthroughs in inquiry process. A few are:

a) Body of the victim is to be forwarded to the nearest civil surgeon or other qualified
medical professional appointed for this purpose by the State Government for the post-
mortem examination within 24 hours of the death of a person.
b) Judicial Magistrate is required to conduct the inquiry within a short time limit. Thus,
Judicial Magistrate can summon the examining doctor, victim’s relative and other
related personnel in order to record their statements. This leads to a speedy inquiry
process and ensures that there be a systematic procedure and working of the judiciary
to mete out apt justice for the victim if necessary.

3
See, art. 14, Constitution of India, dealing with equality before the law. Also see, s. 2, Indian Penal Code 1860,
dealing with application of the Code
 c) Since the body has to be examined by a forensic expert within 24 hours of death, there
is no room for tampering of evidence of any sort and also promotes a speedy and
comprehensive autopsy report to be made hassle-free.
d) The possibility of the executive magistrate being lenient and partial towards the
accused officers and therefore preparing a biased inquiry report is eliminated by a
judicial inquiry.

Section 176 (i)4 of the Criminal Procedure Code, 1973 specifically creates liability of the
magistrate to enquire into cases of police custodial death in order to find out the cause of death so
that any guilty persons can be punished. Recently an enquiry was set up in a case of custodial death
and the team of Gokulpuri Police Station (Delhi) was suspended on its findings. The accused had
been nabbed from Purkazi, Muzaffarnagar (U.P.) in connection with an abduction case. He expired
due to torture in police custody and his body was thrown by the police into the Hindon River. In
another case, a 22 year old young man, expired in police custody at Patel Nagar Police Station in
Delhi. An enquiry was ordered to investigate the case and two constables of the station were
suspended. The accused was picked up by the police from his house on suspicion of an
involvement in theft. Similarly the Supreme Court also takes a strict view as regards cases of police
custodial death. In the recent case of Dalip Singh v. State of Haryana,5 it held two constables along
with the Sub-Inspector of Kurukshethra District (Haryana), guilty of causing death of the accused
by beating and convicted them under Section 304(h)6 of the Indian Penal Code 1860. Further, in
another case of custodial death, the court not only directed the Home Secretary of Punjab to
suspend the guilty sub-inspector for causing it but also ordered the CBI to conduct an enquiry. One
innocent person, Sabarjeet, was picked up by the police, detained for several days and finally
gunned down near the Indo-Pak Border. It was found later that the deceased had nothing to do
with terrorist activities. It shows that policemen found guilty of custodial death are frequently
unpunished by administrative and judicial actions. This, however, of the justice that the criminal
should not go unpunished about relief to the deceased's family is not usually taken such actions.

4
Substituted by Act no. 46 of 1983, dealing with duty of the magistrate to enquire into cause of police custodial death.
Also see, S. 7, Police Act 1861, dealing with power of the Inspector General (I.G.), Deputy Inspector General (D.I.G.),
Additional Deputy General (A.D.G.), and District Superintendent to suspend subordinate policemen guilty of any
offence.
5
AIR 1993 SC 2302
6
Dealing with the punishment of causing death by negligence
Consequently one has to move separately of compensation in cases of custodial death either to the
Civil Court, High Court or Supreme Court respectively.

3. CUSTODIAL JURISPRUDENCE

The Supreme Court initiated the development of "Custodial Jurisprudence" in D.K.Basu v. State
of West Bengal.7 The case came up before the Court through a writ petition under Article 32 of the
Constitution by an NGO. In this case the Chief Justice of India's notice was drawn to a news
published in The Telegraph regarding deaths in police lock-ups and in jail in the State of West
Bengal. It was requested in this petition to examine in depth and to develop custodial
jurisprudence. In this case the Court outlined the following requirements which should be followed
in all cases of arrest or detention as preventive measures:

1. The police personnel carrying out the arrest and handling the interrogation of the arrestee
should bear accurate, visible and clear identification and name tags with their designation the
police personnel carrying out the arrest and handling the interrogation of the arrestee should
bear accurate, visible and clear identification and name tags with their designations. The
particulars of all such police personnel who handle interrogation of the arrestee must be
recorded in a register.
2. The police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the
time of arrest and such memo shall be attested by at least one witness, who may be either a
member of the family of the arrestee or a respectable person of the locality from where the
arrest is made. It shall also be countersigned by the arrestee and shall contain the time and
date of arrest.
3. A person who has been arrested or detained and is being held in custody in a police station or
interrogation center or other lock-up, shall be entitled to have one friend or relative or other
person known to him or having interest in his welfare being informed, as soon as practicable,
that he has been arrested and is being detained at the particular place, unless the arresting
witness of the memo of the arrest is himself such a friend or relative of the arrestee.
4. The time, place of arrest and venue of custody of an arrestee must be notified by the police
where the next friend or relative of the arrestee lives outside the district or town through the

7
AIR 1997 SC 3017
 Legal Aid Organisation in the District and the Police station of the area concerned
telegraphically within a period of 8 to 12 hours after the arrest.
5. The person arrested must be made aware of his right to have one informed of his arrest or
detention as soon as he is put under arrest or is detained.
6. An entry must be made in the diary at the place of detention regarding the arrest of the person
which shall also disclose the name of the next friend of arrestee and the name and particulars
of the police officials in whose custody the arrestee is.
7. The arrestee should, where he so requests, be also examined at the time of his arrest and major
and minor injuries, if any present on his/her body, must be recorded at that time. The
"Inspection Memo" must be signed both by the arrestee and the police officer effecting the
arrest and its copy provided to the arrestee.
8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours
during his detention in custody by a doctor on the panel of approved doctors appointed by
Director, Health Services of the concerned State or Union Territory. Director, Health Services
should prepare such a panel for all Tehsils and Districts as well.
9. Copies of all the documents including the memo of arrest, referred to above, should be sent
to the Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout
the interrogation.
11. A police control room should be provided to all district and State Headquarters, where
information regarding the arrest and place off custody of the arrestee shall be communicated
by the officer causing the arrest. Within 12 hours of effecting the arrest and at the police
control room it should be displayed on a conspicuous board.

The Court observed that the requirements, referred to above flow from Articles 21 and 22(1) of
the Constitution and need to be strictly followed. In Nilabati Behera v. State of Orissa,8 the Court
observed that prisoners and detainees are not denuded of their fundamental rights under Article 21
and that it IS only such restrictions as are permitted by law, which can be imposed on the enjoyment
of the fundamental rights of the arrestees and detainees. It was further observed "... there is a great
responsibility on the police or prison authorities to ensure that the citizen in its custody is not

8
(1993) 2 SCC 746
deprived of his right to life. His liberty is in the very nature of things circumscribed by the 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 procedure established by law..." In this case Court awarded a sum of Rs.
1.5 lakhs to the mother as her son had died in police custody. The Court's judgment also referred
to Article 9(5) of the International Covenant on Civil and Political Rights, which indicates that an
enforceable right to compensation is not alien to the concept of enforcement of a guaranteed right.
Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to
compensation.

4. CONCLUSION

India has faced a lot of issues with regard to state action, particularly in the realm of the police
forces. Corruption, maladministration and various cases of mistreatment of prisoners and their
exposure to third-degree treatment have tainted the name of the State. There have been numerous
cases in the country discussed before the Hon’ble Supreme Court of India where there have been
guidelines and precedents laid out with regard to the fundamental rights of prisoners and how they
hold equal importance as does any other citizen’s. Apart from the Constitutional safeguards, the
Code of Criminal Procedure, 1973, also provides for a judicial inquiry by a Magistrate into cases
of custodial torture by the police authority. The guidelines for the same were laid out expansively
by the Hon’ble Apex Court in D.K. Basu’s case. Despite all these safeguards – both statutory and
constitutional, Indian prisoners continue to suffer at the hands of the police, under custody. India
needs to review and further strengthen the powers given to the judiciary to tackle this issue and
adequately curb the menace to be in consonance with most countries which have stringent laws
against the same.