Custodial Violence

7/21/2019 Custodial Violence

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Custodial Violence“If you once forfeit the confidence of

our fellow citizens you can never regaintheir respect and esteem.

It is true thatyou can fool all the people some of the time,

and some of the people all the time,but you cannot fool all the people all the time."

: Abraham Lincoln.

Synopsis Introduction! #ustodial $eath Is %orst &ind 'f #rime!

( )eaning 'f *+orture!- ower 'f Investigation $o /ot Authorize +orture!0 1vil 1ffects 'f #ustodial 2iolence!3 #ompulsory )edical 14amination 'f Arrested ersons:5 olice 6ound +o 14plain 7ate 'f +he erson $etained 6y It!8 Liability 'f 9tate! ;egistration 'f #ase Against olice!< /ature 'f ublic Law ;emedy! 1ffect 'f Ac=uittal!

#omplaint 6y Accused In rison!( #ase +o 6e ;egistered In #ase 'f 1ncounter $eath!- )agisterial 1n=uiry!0 $ifficulty 'f roving +he 'ffence!3 6urden Is 'n +he erson >aving #ustody!5 #ourts +o 9how 9ensitivity!8 Invocation 'f %rit ower 7or ;emedy! 9tandard 'f roof ;e=uired!< +ac?ling roblem 'f #ustodial 2iolence! 2ictim 1ntitled 7or #ompensation!

@uantum 'f $amages! and( #ivil ;emedy Is /ot 6arred.

1 Introduction:

Self-preservation is the most pervasive aspect of sovereignty. To

preserve its independence and territories is the highest duty of every nation



and to attain these ends nearly all other considerations are to be

subordinated.1 Torture is the inquiry after truth by means of torment. 2 No one

shall be subjected to torture or to cruel, inhuman or degrading treatment or

punishment. !ustodial violence, including torture and death in the loc" ups

stri"es a blo# at the $ule of %a#, #hich demands that the po#ers of thee&ecutive should not only be derived from la# but also that the same should

be limited by la#. !ustodial violence is a matter of concern. 't is aggravated

by the fact that it is committed by persons #ho are supposed to be the protectors of the citi(ens. 't is committed under the shield of uniform and

authority in the four #alls of a police station or loc"-up, the victim being

totally helpless. The protection of an individual from torture and abuse by the

police and other la# enforcing officers is a matter of deep concern in a free

society.) There is an inbuilt guarantee in the !onstitution of 'ndia against

torture or assault by the State or its functionaries.* +overnment as theomnipotent and omnipresent teacher teaches the #hole people by its e&ample.

'f the +overnment becomes a la# brea"er, it breeds contempt for la#, itinvites every man to become a la# into himself.

The police are under a legal duty and have legitimate right to arrest a criminal

and to interrogate him during the investigation of an offence but the la# does

not permit use of third degree methods or torture of accused in custody

during interrogation and investigation #ith a vie# to solve the crime. nd

cannot justify the means. The interrogation and investigation into a crimeshould be in true sense purposeful to ma"e the investigation effective. ytorturing a person and using third degree methods, the police #ould be

accomplishing behind the closed door #hat the demands of our legal order

forbid. No society can permit it./

1 Abdul Karim v. State of Karnataka, (2000) 8 S.C.C. 710 : 2001 Cri L 1!8.

2 0Torture by d#ard eters.

Arti"le # of t$e %niver&al 'e"laration of uman i*$t& in 1+!8

) '. K. a&u v. State of -e&t en*al, 1++7 (1) SCC !1

* /un&$i Sin*$ autam and ot$er& v. State of /.., A 200# SC !023 200# SCC (+) 41

u&ti"e randie& in (1+28) 277 %.S. !48, 5uoted in (1+1) 47 %.S. !4

/ S.Kri&$namoort$6 and anot$er v. State of amil adu, (2008) 2 /L (Cr) 1217



The police, #ith their #ide po#ers are apt to overstep their (eal to detect

crimes and are tempted to use the strong arm against those #ho happen to fall

under their secluded jurisdiction. That tendency and that temptation must in

the larger interest of justice be nipped in the bud.3

4n many occasions, #henla#-brea"ers are arrested, they ma"e #ild allegations, and shout from roof

top 5police brutality5 or 5customs brutality5, #hich are nothing but cat-calls. 6

No person #ho supports human rights can support terrorism #hich results ina grave violation of human rights of innocent people. 7 terrorist #ho violates

human rights of innocent citi(ens must be punished, but his human rights

should not be infringed e&cept in the manner permitted by la#.18 ut it needs

to be carefully e&amined #hether the allegations of custodial violence are

genuine or are sham attempts to gain undeserved benefit masquerading as

victims of custodial violence.11

2 Custodial Death Is Worst Kind Of Crime:

Torture in custody fouts the basic rights o the citizensrecognised by the Indian Constitution and is an aront tohuman dignity.12 Custodial crime is a species o man-mademalady which is growing in alarming proportions. y resortingto such e!cesses" the law enforcers are only creating a congenial

atmosphere for fostering terrorism. No civili(ed society can afford to support

this transformation of man into a beastly animal. The death in police custodyis perhaps one of the #orst "ind of crimes in a civilised society, governed by

the rule of la# and poses a serious threat to an orderly civilised society.

Torture in custody flouts the basic rights of the citi(ens recognised by the

'ndian !onstitution and is an affront to human dignity.1 9!ustodial torture9 is

3 'a*du v. State of /a$ara&$tra (1+77) 4 SCC 8: A 1+77 SC 1#7+

6 o&$an eevi and anot$er v. oint Se"retar6, overnment of amil adu, 1+8! Cr.L.. 14! /ad.

18 S9ee"$ of t$e C$airman of t$e ational uman i*$t& Commi&&ion at t$e ational oundation for La; andSo"ial u&ti"e, at Ko"$i, or*ani<ed b6 u&ti"e =. . Kri&$na 6er,

11 S$akila Abdul afar K$an v. =a&ant a*$unat$ '$oble, 2004 (7) SCC 7!+ 3 /un&$i Sin*$ autam v. State of

/.., 200# (+) SCC 41

12 :albir Singh v. State of ;.., 2886 !r.%.<. 1*) S!

1 State of /.. v. S$6am&under rivedi and ot$er&, A 1++# SC- 27+43 (1++#)! SCC 22



a calculated assault on human dignity and #henever human dignity is

#ounded, civilisation ta"es a step bac"#ard - flag of humanity must on each

such occasion fly half-mast.1) Nothing is so dehumanising as the conduct of

police in practising torture of any "ind on a person in their custody. The

police image in the estimation of the public has badly suffered on account of the prevalence of this practice in varying degrees over the past several

years.1* :enying a person of his liberty is a serious matter. 1 't is more

heinous than a game "eeper becoming a poacher.1/

Torturing suspects #ith a vie# to e&torting information from them, is a crude,

barbarous and reprehensible method of investigating and detecting crime.

Those #ho are entrusted #ith the duty of enforcing the la#, must learn to

obey the la#. 'n police investigation as in other matters, the end does not

justify the means= the means are as important as the end13. :eath in policecustody must be seriously vie#ed for other#ise #e #ill help ta"e a stride in

the direction of police raj. 't must be curbed #ith a heavy hand. 16 Torturing, a person and using third degree methods are of medieval nature and they are

barbaric and contrary to la#. The police #ould be accomplishing behind their

closed doors precisely #hat the demands of our legal order forbid.28 There is

an inclination on the part of some of the supervisory ran"s in the police

hierarchy to countenance this practice in a bid to achieve quic" results by

short-cut methods.21

3 Meanin Of !"orture#:

9Torture9 has not been defined in the !onstitution or in other penal la#s.

5Torture5 of a human being by another human being is essentially an

1) '.K.a&u v. State of -.., A 1++7 SC 103 (1++7) 1 SCC !13 1++7 Crl.L..7!4.

1* !t$ e9ort of une 1+80 of t$e ational oli"e Commi&&ion

1 o*inder Kumar v. State of %.. (1++!) ! SCC 20 : 1++! Cri L 1+81

1/ $a*;an Sin*$ and anot$er v. State of un>ab, A 1++2 SC 18+3 1++2?SCC?4?2!+

13 ubli" ro&e"utor v. S$aik bra$im, 1+! (2) Cr. L 4

16 auri S$anker S$arma et"., v. State of %.. et"., A 1++0 SC 70+, 1++0?SCC?Su991?#

28 $a*;an Sin*$ @ Am. v&. State of un>ab, 1++2 (4) SCC 2!+

21 !t$ e9ort of une 1+80 of t$e ational oli"e Commi&&ion



instrument to impose the #ill of the 5strong5 over the 5#ea"5 by suffering. The

#ord torture today has become synonymous #ith the dar"er side of human

civilisation.22 Torture is anguish squee(ing in your chest, cold as ice and

heavy as a stone paraly(ing as sleep and dar" as the abyss. Torture is despair

and fear and rage and hate. 't is a desire to "ill and destroy includingyourself.2

$ %o&er Of In'estiation Do (ot )uthori*e "orture:

'n a society, #here the rule of la# is paramount and #hen there is no

evidence to suggest that a person resisted the police from arresting him, no

force #hatever could be justified in the process of ta"ing him into custody.2)

>orst violations of human rights ta"e place during the course of

investigation, #hen the police #ith a vie# to secure evidence or confession

often resort to third degree methods including torture and adopts techniquesof screening arrest by either not recording the arrest or describing the

deprivation of liberty merely as a prolonged interrogation.2* ersons detainedin police custody have as much right to life as ordinary citi(ens.2

'nterrogation does not mean inflicting injuries. 't should be in its true sense

and purposeful namely to ma"e the investigation effective. Torturing a person

and using third degree methods are of medieval nature and they are barbaric

and contrary to la#.2/ The police must not e&ceed the po#ers, #hich have

been entrusted to them and they must duly perform the duties #hich have

been laid upon them. 'f they do not do so, they must ans#er it.23

+ ,'il ,ffects Of Custodial Violence:

olice e&cesses and the maltreatment of detainees?under trial prisoners or

suspects tarnishes the image of any civilised nation and encourages the men

22 '.K.a&u v. State of -.., A 1++7 SC 103 (1++7) 1 SCC !13 1++7 Crl.L..7!4.

2 Adriana . arto;

2) :r.$anjit $eang v. State of Tripura and others, 2883 !r.%.<. )8/ +au.

2* '.K.a&u v. State of -.., A 1++7 SC 103 (1++7) 1 SCC !13 1++7 Crl.L..7!4.

2 asant Singh v. State of unjab and others, 2883 !r.%.<. ))** @A

2/ $a*;an Sin*$ and anot$er v. State of un>ab, A 1++2 SC 18+3 1++2?SCC?4?2!+

23 :r.$anjit $eang v. State of Tripura and others, 2883 !r.%.<. )8/ +au.



in 5Bha"i5 to consider themselves to be above the la# and sometimes even to

become la# unto themselves. ;nless stern measures are ta"en to chec" the

malady, the foundations of the criminal justice delivery system #ould be

sha"en and the civili(ation itself #ould ris" the consequence of heading

to#ards perishing.26

'f the po#er of the police to "ill anybody and attribute itto self-defence is accepted, then 7rticle 21 of the !onstitution of 'ndia #ould

become meaningless. 'n case of any death of a citi(en occurring during the

course of encounter or a shoot-out or e&change of fire or in police custody, ithas to be registered as a case of culpable homicide.8

- Compulsory Medical ,.amination Of )rrested %ersons:

't is #ell "no#n that custodial violence is #idely prevalent in 'ndia.

Scientific investigation is not follo#ed by many police officers. This

situation has been created by the overburden of #or" and lac" of scientifictraining of the police officers. The Supreme !ourt has, in many cases held

that custodial violence is the #orst form crime against human being. 'n manycases, injury on the accused could have been caused in the occurrence or in

some cases by the police officers. ecause of the over burdening of the #or"

in the Cagistrate !ourts the #or" of noting of the injuries available on the

accused persons by the Cagistrate has become a mere ritual. This guideline is

adhered in practice only #hen the accused person is a highly informed person

and in such cases, the injuries are noted by the Cagistrates. Durther, even to

e&ercise such right the presence of an advocate is necessary.

>hen the accused is arrested by the police for the first time, the time

#hen he #ould be produced before the Cagistrate is not certain and #hen

time is not certain the presence of la#yer to assist the accused cannot be

ensured. So, the right of the accused to file a petition before the !ourt to note

do#n the injuries on him cannot be utilised. Durther, the accused #ould also

be under constant threat of injury to him since he is produced before the

Cagistrate only by the police officer #ho arrested him. To avoid such "ind of

infraction of human rights, no#, Sec.*) !r..!. has been substituted #ith ne# provision, y this amendment, no#, it is compulsory for the police officer

26 State of /.. v. S$6am&under rivedi and ot$er&, A 1++# SC- 27+43 (1++#)! SCC 22

8 And$ra rade&$ Civil Libertie& Committee re9. b6 it& eneral Se"retar6 v. State of A. . @ anot$er, 2008 Cr.L..

!02 A..



#ho ma"es arrest to produce such person immediately before the medical

officer.

7s per the amended Sec.*) of !ode of !riminal rocedure, 16/

immediately on the arrest of anyone, #hether that person is having injury or not, he has to be produced before the medical officer. 4n his production, the

Cedical 4fficer employed by the +overnmentE!entral or StateF has to

e&amine the body of the accused and give certificate as to the injuries

available on his body at the time of production before him. 'f injuries are

available on his body, it should be mar"ed by him and after such mar"ing,

copy of the same has to be given by that medical practitioner to the arrested person. 'n case such injuries not available and thereafter, some injuries are

available it is easy for the !ourt to fi& responsibility for such injuries

available on the body of the accused person.

'n case the arrested person is a female, to safeguard her modesty, she

shall be e&amining by a female Cedical 4fficer. 'f any medical officer under

the employment of the State or !entral is not available, the arrested person

could be e&amined by a registered medical practitioner and this e&aminationhas to be done soon after arrest is made. So, on the one hand the effect of

arrest has been qualified by many safeguards especially based upon the

punishment provided Eno# the discretion has been effectively regulated for

the offences for #hich ma&imum punishment provided is / years of lessF andon the other hand, the custodial violence has been made practically

impossible by mandatory e&amination by the medical officer immediately on

arrest. This restriction enables the accused to claim compensation effectively

in case his human rights are violated by the police officers.

/ %olice 0ound "o ,.plain ate Of "he %erson Detained 0y It:

'f a person is in police custody then #hat has happened to him is

peculiarly #ithin the "no#ledge of the police officials #ho have ta"en him

into custody.1 'n such cases the follo#ing are the legal positionGa no crime can be registered under Section 8/ of '!, against a

person "illed in an encounter.

b >henever a person is found dead, out of bullet injuries in an

encounter, #ith the police,

1 $a*;an Sin*$ and anot$er v. State of un>ab, A 1++2 SC 18+3 1++2?SCC?4?2!+



i if a specific complaint is made, alleging that any identified

individual had caused the death of such person, an independent

D'$ shall be registered in it.

ii in the absence of any complaint, the procedure prescribed under

Section 1/ of the !r. .!. shall be follo#ed, #ithout, prejudiceto any investigation, that may be underta"en by the police itself.2

ia4ility Of State:

njoyment of the basic human rights are the entitlement of every citi(en, and

their protection the obligation of every civilised State. They are inherent in

and essential to the structure of society. They do not depend on the legal or

constitutional form in #hich they are declared. 't is an obligation of the

State to ensure that there is no infringement of the indefeasible rights of a

citi(en to life, e&cept in accordance #ith la#, #hile the citi(en is in itscustody.) State is duty bound to protect the fundamental rights of the persons

lodged in prison. 'nfliction of injuries on the person in custody amounts toviolating his fundamental right under 7rt.21 of the !onstitution of 'ndia. *

State is responsible for the tortuous acts of its employees. There is a

commitment by the !ro#n that those #ho in the three branches of the

+overnment e&ercise its functions, po#ers and duties #ill observe the rights

that the !onstitution affirms./ The State must be held responsible for the

unla#ful acts of its officers and it must repair the damage done to the citi(ens

by its officers for violating their indivisible fundamental right of personalliberty #ithout any authority of la# in an absolutely high-handed manner.3

>here the !onstitutional right is one guaranteed by the State, it is against the

State that the remedy must be sought if there has been a failure to discharge

2 And$ra rade&$ Civil Libertie& Committee re9. b6 it& eneral Se"retar6 v. State of A. . @ anot$er, 2008 Cr.L..

!02 A..

Sim9&on v. Attorne6 eneral (ai*ent& "a&e) 1++! BL 7,

) eo9le& %nion for 'emo"rati" i*$t& v&. oli"e Commi&&ioner, 'el$i oli"e ead5uarter&, 1+8+ (!) SCC 740.

* $avindra Nath 7#asthi v. State of ;.. and others, 2886 !r.%.<. EN4!F 32 7ll.

Sa$eli, A ;omen& e&our"e& Centre v. Commi&&ioner of oli"e, 'el$i and ot$er&, A 1++0SC #143 (1++0)1 SCC !223 (1+8+)1 /L(Crl)72

/ Sim9&on v. Attorne6 eneral (ai*ent& "a&e) 1++! BL 7,

3 '$anan>a6 S$arma v&. State of ar6ana, 1++# (4) SCC 7#7



the constitution obligation imposed.6 >hen a person facing threat from many

persons is arrested and put in prison, the State should ta"e effective measures

to protect him in prison from his enemies. 'n case he is murdered by his

enemies inside the prison, the State is liable to pay compensation to his

family members.)8

The defence of sovereign immunity being inapplicable and alien to the

concept of guarantee of fundamental rights, there can be no question of sucha defence being available in the constitutional remedy. 't is this principle

#hich justifies a#ard of monetary compensation for contravention of

fundamental rights guaranteed by the !onstitution, #hen that is the only

practicable mode of redress available for the contravention made by the State

or its servants in the purported e&ercise of their po#ers, and enforcement of

the fundamental right is claimed by resort to the remedy in public la# under the !onstitution by recourse to 7rticles 2 and 22 of the !onstitution.)1

5 6eistration Of Case )ainst %olice:

>hen the information is regarding the commission of cogni(able offences by

the police officials, including the said Sub-'nspector5s o#n higher officials it

is the duty of the officer in charge of the police station to register the case. No

olice Standing 4rder prevents him from doing so.)2 There is no different

procedure for the investigation and prosecution of offence committed by

police officers in connection #ith their relations #ith the public.)

17 (ature Of %u4lic a& 6emedy:

7 !ourt of la# cannot close its consciousness and aliveness to star" realities.

Cere punishment of the offender cannot give much solace to the family of

the victim - civil action for damages is a long dra#n and cumbersome judicial

process. Conetary compensation for redressal by the !ourt finding the

6 6rne v. reland, (1+72) 2!1,

)8 Tmt.$ohini %ingam v. State and others, 2883 !r.%.<. EN4!F 61 ECadF

)1 $im Sin*$ v&. State of @K, 1+8# (!) SCC 77 3 eo9le& %nion for 'emo"rati" i*$t& v&. oli"e

Commi&&ioner, 'el$i oli"e ead5uarter&, 1+8+ (!) SCC 740.

)2 A. alla&ivan v. State Df amil adu and Dt$er&, 1++# Cr.L. ?27#! ?/ad3

) State of un>ab v. a> Kumar (1+88) 1 SCC 701, A 1+88 SC 80#



infringement of the indefeasible right to life of the citi(en is, therefore, a

useful and at times perhaps the only effective remedy to apply balm to the

#ounds of the family members of the deceased victim, #ho may have been

the bread #inner of the family.)) !ompensation in public la# ought to be

directed to be paid by the State for the humiliating and unauthori(ed assaultcaused by the olice to anyone.)*

The public la# proceedings serve a different purpose than the private la# proceedings. The relief of monetary compensation, as e&emplary damages, in

proceedings under 7rticle 2 by the Supreme !ourt or under 7rticle 22 by

the Aigh !ourts, for established infringement of the indefeasible right

guaranteed under 7rticle 21 is a remedy available in public la# and is based

on the strict liability for contravention of the guaranteed basic and

indefeasible rights of the citi(en. The purpose of public la# is not only tocivili(e public po#er but also to assure the citi(en that they live under a legal

system #hich aims to protect their interests and preserve their rights.Therefore, #hen the court moulds the relief by granting compensation in

proceedings under 7rticle 2 or 22 see"ing enforcement or protection of

fundamental rights, it does so under the public la# by #ay of penali(ing the

#rongdoer and fi&ing the liability for the public #rong on the State #hich has

failed in its public duty to protect the fundamental rights of the citi(en. The

payment of compensation in such cases is not to be understood, as it is

generally understood in a civil action for damages under the private la# butin the broader sense of providing relief by an order of ma"ing 5monetaryamends5 under the public la# for the #rong done due to breach of public

duty, of not protecting the fundamental rights of the citi(en. The

compensation is in the nature of e&emplary damages a#arded against the

#rongdoer for the breach of its public la# duty and is independent of the

rights available to the aggrieved party to claim compensation under the

private la# in an action based on tort, through a suit instituted in a court of

competent jurisdiction or?and prosecute the offender under the penal la#.)

)) '.K.a&u v. State of -.., A 1++7 SC 103 (1++7) 1 SCC !13 1++7 Crl.L..7!4

)* :r.$anjit $eang v. State of Tripura and others, 2883 !r.%.<. )8/ +au.

) $im Sin*$ v&. State of @K, 1+8# (!) SCC 77 3 eo9le& %nion for 'emo"rati" i*$t& v&. oli"e

Commi&&ioner, 'el$i oli"e ead5uarter&, 1+8+ (!) SCC 740.



11 ,ffect Of )c8uittal:

Cere acquittal of the police personnel in the criminal case #ill not absolve

the responsibility of the State +overnment in paying compensation for the

atrocities committed and custodial violence caused against the citi(en. Dor the

custodial violence the aggrieved party is entitled to compensation not onlyunder the principles of strict liability but also on absolute liability.)/

12 Complaint 0y )ccused In %rison:

Torture is not a crime in 'ndia. To convict a la# enforcement officer

concerning torture, the act has to qualify for all the requirements for any

other crimes under the 'ndian enal !ode, 1368. To prove a crime, meeting

all standards and that can be punished under the 'ndian enal !ode is difficult

because of the absence of independent investigating agencies. The absence of

an independent agency to investigate cases of custodial torture is e&ploited bythe offenders since they "no# that even if a complaint is made regarding

torture it #ill not be properly investigated.)3 >e cannot legitimately e&pect anaccused to lodge the complaint against police official #hen he is in prison.)6

13 Case "o 0e 6eistered In Case Of ,ncounter Death:

Hncounter "illings,I yet another corollary of custodial torture are increasing

alarmingly in 'ndia. The cases of 9encounter "illings9 reported from the states

of +ujarat, ;ttar radesh, Barnata"a, !hhattisgarh and 7ndhra radesh sho#

a consistent and alarming pattern of tolerance for the use of violence by stateagencies.*8

Nobody can say that the police should #ait till they are shot at. 't is for the

force on the spot to decide #hen to act, ho# to act and #here to act. 't is not

for the !ourt to say ho# the terrorists should be fought. 'f the police had

information that terrorists #ere gathering at a particular place and if they had

surprised them and arrested them, the proper course for them #as to deal #ith

)/ alaniammal v. State of .., (2008) # /L #!1

)3 Submission by the 7sian %egal $esource !entre to the Auman $ights !ouncils ;niversal

eriodic $evie# on human rights in the $epublic of 'ndia

)6 'enn6 v. 'i&tri"t Colle"tor, =ellore and ot$er&. (2008) 2 /L (Crl) 42+

*8 Submission by the 7sian %egal $esource !entre to the Auman $ights !ouncils ;niversal

eriodic $evie# on human rights in the $epublic of 'ndia



them according to la#. 97dministrative liquidation9 #as certainly not a

course open to them.*1 'n an encounter if police officer causes death of a

person even in self-defence, it is culpable homicide, but #hether it #ould

constitute an offence or not, that #ould depend on the investigation and the

trial, if any. ut the police officer #ho caused the death, may be in self-defence, cannot himself be the judge of his o#n cause.*2 The la# on right of

private defence #ould play only at the time of trial or at best during the

investigation, but not before investigation.* 'n case of death caused in anencounter #ith the police, the procedure prescribed by the National Auman

$ights !ommission, in its communication dated 26--166, must be

follo#ed.*)

't is not the domain of the representative of the &ecutive to decide #hether

the occurrence of firing by police too" place by #ay of self defence or not.ven if such a finding had been returned by the $:4 a case should have been

filed as against the police official concerned and the finding of the $:4should have been tested before the judicial forum.** 'f a police officer gives

an information to the in charge of the police station that in an encounter a

person got "illed #hile police officer #as acting in self-defence, it amounts to

giving an information of a cogni(able offence having been committed

because life is lost. !r..!. does not prohibit inclusion of police officials, in

the list of accused, if during the course of investigation their culpability is

suspected.*

>hen a person is dead in an encounter #ith the police, the question of

accusing him of attempt to murder, does not arise. Durther, any investigation

*1 eo9le& %nion for Civil Libertie& v. %nion of ndia, (1++7) 4 S.C.C. !44 : A 1++7 SC 1204.

*2 And$ra rade&$ Civil Libertie& Committee re9. b6 it& eneral Se"retar6 v. State of A. . @ anot$er, 2008 Cr.L..

!02 A..

* =. Subramani v. State of .., (200#) 10 S.C.C. 4#8 : 200# Cri L 1727.3 And$ra rade&$ Civil Libertie&

Committee re9. b6 it& eneral Se"retar6 v. State of A. . @ anot$er, 2008 Cr.L.. !02 A..

*) A. Ana&ur6a v. Station ou&e Dffi"er, adi"$erla, 2001 (2) AL' 87.

** 'enn6 v. 'i&tri"t Colle"tor, =ellore and ot$er&. (2008) 2 /L (Crl) 42+

* And$ra rade&$ Civil Libertie& Committee re9. b6 it& eneral Se"retar6 v. State of A. . @ anot$er, 2008 Cr.L..

!02 A..



into the question, as to #hether the death of the person is on account of any

indiscriminate use of #eapons by the police, #ithout any provocation and

other related facts, cannot be carried out, on the basis of a crime registered

under Section 8/, or the allegations, #hich are relevant to that provision. 'n

fact, it #ould amount to contradiction in terms.*/

1$ Maisterial ,n8uiry:

The death in an encounter, cannot stand on a higher footing, than the one, in police custody, in the limited conte&t of the possible culpability of the police

officials. >henever a death ta"es place, in police custody, the procedure un-

der Section 1/ of the !ode, is required to be follo#ed.*3

;nder sub-section E1F of Section 1/ of the !ode #hen a person dies #hile in

police custody, a Cagistrate may hold an inquiry into the cause of death#hich #ill be either instead of, or in addition to, the investigation held by the

police officer. Section 1/ no #here controls Section 1*) of the !ode.Section 1/ of the !ode applies to the deaths of persons in police custody,

but not to deaths caused in e&change of fire or in encounter #hen the person

#ho dies #as not in the custody of police. The &ecutive Cagistrate is

conferred #ith all the po#ers, #hich are necessary to hold inquiry into an

offence. Ae can record the evidence, e&amine the dead-body, and ascertain

the cause of death. The &ecutive Cagistrate is also placed under obligation

to inform the relatives of the deceased person, #herever it is possible. :uringthe course of enquiry, the persons, #ho have any "no#ledge about the occur-rence, can furnish the information, and it #ill constitute the basis for the

report, that may have to be submitted by the &ecutive Cagistrate. 'f the

report of the &ecutive Cagistrate, or the result of an investigation, by the

police, into such an incident, is not satisfactory, la# provides for several

remedies, in the form of private complaints, protest petitions, or #rit

petitions, to ensure that steps contemplated under la# are complied #ith. The

report submitted by the &ecutive Cagistrate, shall constitute the basis for

further steps under Section 168.*6

*/ And$ra rade&$ Civil Libertie& Committee re9. b6 it& eneral Se"retar6 v. State of A. . @ anot$er, 2008 Cr.L..

!02 A..

*3 And$ra rade&$ Civil Libertie& Committee re9. b6 it& eneral Se"retar6 v. State of A. . @ anot$er, 2008 Cr.L..

!02 A..



1+ Difficulty Of %ro'in "he Offence:

olice officers alone, and none else, can give evidence as regards the

circumstances in #hich a person in their custody comes to receive injuries

#hile in their custody. ound by ties of a "ind of brotherhood, they often

prefer to remain silent in such situations and #hen they choose to spea", they put their o#n gloss upon facts and pervert the truth. The result is that persons,

on #hom atrocities are perpetrated by the police in the sanctum sanctorum of

the police station, are left #ithout any evidence to prove #ho the offendersare.8

1- 0urden Is On "he %erson 9a'in Custody:

>hen death #as caused #hile the deceased #as in the custody of the

accused, accused is obliged to give a plausible e&planation for the cause of

death in his statement under Section 1, !r..!.1

1/ Courts "o Sho& Sensiti'ity:

!ases #here violation of 7rticle 21 involving custodial death or torture is

established or is incontrovertible stand on a different footing #hen compared

to cases #here such violation is doubtful or not established. >here there is no

independent evidence of custodial torture and #here there is neither medical

evidence about any injury or disability, resulting from custodial torture, nor

any mar"?scar, it may not be prudent to accept claims of human right

violation, by persons having criminal records in a routine manner for a#arding compensation.2 The courts are required to have a change in their outloo" approach, appreciation and attitude, particularly in cases involving

custodial crimes and they should e&hibit more sensitivity and adopt a realistic

rather than a narro# technical approach, #hile dealing #ith the cases of

custodial crime so that as far as possible #ithin their po#ers, the truth is

*6 And$ra rade&$ Civil Libertie& Committee re9. b6 it& eneral Se"retar6 v. State of A. . @ anot$er, 2008 Cr.L..!02 A..

8 State of %.. v. am Sa*ar Eadao. A 1+8# S.C. !1, 3 Con&titutional La; of ndia b6 ./. Seervai, ourt$

Fdition, =olume 2, 9a*e 1171.

1 ane&$lal v. State of /a$ara&$tra, 1++4 SCC (Cri) !4# : 1++2 Cri L 1#!#,

2 Sube Sin*$ v. State of ar6ana 200?Cr.L. ?12!2 ?SC



found and guilty should not escape so that the victim of the crime has the

satisfaction that ultimately the majesty of la# has prevailed.

The courts must deal #ith such cases in a realistic manner and #ith the

sensitivity #hich they deserve, other#ise the common man may lose faith inthe judiciary itself, #hich #ill be a sad day. The courts are required to have a

change in their outloo" and attitude, particularly in cases involving custodial

crimes and they should e&hibit more sensitivity and adopt a realistic rather than a narro# technical approach, #hile dealing #ith the cases of custodial

crime so that as far as possible #ithin their po#ers, the guilty should not

escape so that the victim of the crime has the satisfaction that ultimately the

majesty of la# has prevailed.) !ourts should #hile jealously protecting the

fundamental rights of those #ho are illegally detained or subjected to

custodial violence, should also stand guard against false, motivated andfrivolous claims in the interests of the society and to enable olice to

discharge their duties fearlessly and effectively.*

1 In'ocation Of Writ %o&er or 6emedy:

7#ard of compensation in a proceeding under 7rticle 2 by theSupreme !ourt or by the Aigh !ourt under 7rticle 22 of the !onstitution is

a remedy available in public la#, based on strict liability for contravention of

fundamental rights to #hich the principle of sovereign immunity does not

apply, even though it may be available as a defence in private la# in an action based on tort. 'n cases #here custodial death or custodial torture or other

violation of the rights guaranteed under 7rticle 21 is established, courts may

a#ard compensation in a proceeding under 7rticle 2 or 22. Ao#ever,

before a#arding compensation, the !ourt #ill have to pose to itself thefollo#ing questions G

a >hether the violation of 7rticle 21 is patent and incontrovertible,

b #hether the violation is gross and of a magnitude to shoc" the

conscience of the court,

/un&$i Sin*$ autam and ot$er& v. State of /.., A 200# SC !023 200# SCC (+) 41

) State of /.. v. S$6am&under rivedi and ot$er&, A 1++# SC- 27+43 (1++#)! SCC 22

* Sube Sin*$ v. State of ar6ana 200?Cr.L. ?12!2 GSC3 /un&$i Sin*$ autam and ot$er& v. State of /.., A

200# SC !023 200# SCC (+) 41

ilabati e$era v&. State of Dri&&a, 1++4 (2) SCC 7!



c #hether the custodial torture alleged has resulted in death or #hether

custodial torture is supported by medical report or visible mar"s or

scars or disability. >here there is no evidence of custodial torture of a

person e&cept his o#n statement, and #here such allegation is not

supported by any medical report or other corroboration evidence, or #here there are clear indications that the allegations are false or

e&aggerated fully or in part, courts may not a#ard compensation as a

public la# remedy under 7rticle 2 or 22, but relegate the aggrieved party to the traditional remedies by #ay of appropriate civil?criminal

action./

15 Standard Of %roof 6e8uired:

$arely in cases of police torture or custodial death, direct ocular evidence of

the complicity of the police personnel #ould be available. ound as they are by the ties of brotherhood, it is not un"no#n that the police personnel prefer

to remain silent and more often than not even pervert the truth to save their colleagues. The e&aggerated adherence to and insistence upon the

establishment of proof beyond every reasonable doubt, by the prosecution,

ignoring the ground realities, the fact-situations and the peculiar

circumstances of a given case often results in miscarriage of justice and

ma"es the justice delivery system a suspect. 'n the ultimate analysis the

society suffers and a criminal gets encouraged.3

'n the prosecution of a police officer for an alleged offence of having caused bodily injuries to a person #hile in police custody, if there is evidence that

the injury #as caused during the period #hen the person #as in the police

custody, the court may presume that the injury #as caused by the police

officer having the custody of that person during that period unless, the police

officer proves to the contrary. The onus to prove the contrary must be

discharged by the police official concerned.6

27 "aclin %ro4lem Of Custodial Violence:

/ Sube Sin*$ v. State of ar6ana 200?Cr.L. ?12!2 ?SC

3 State of /ad$6a rade&$ =. S$6am&under rivedi, 1++#?SCC?!?223 /un&$i Sin*$ autam and ot$er& v. State

of /.., A 200# SC !023 200# SCC (+) 41

6 114t$ e9ort of t$e La; Commi&&ion



!ustodial violence requires to be tac"led from t#o ends, that is, by ta"ing

measures that are remedial and preventive. 7#ard of compensation is one of

the remedial measures after the event. ffort should be made to remove the

very causes, #hich lead to custodial violence, so as to prevent such

occurrences. Dollo#ing steps, if ta"en, may prove to be effective preventivemeasures G

a olice training should be re-oriented, to bring in a change in the

mindset and attitude of the olice personnel in regard toinvestigations, so that they #ill recogni(e and respect human rights,

and adopt thorough and scientific investigation methods.

b The functioning of lo#er level olice 4fficers should be continuously

monitored and supervised by their superiors to prevent custodial

violence and adherence to la#ful standard methods of investigation.

c !ompliance #ith the eleven requirements enumerated in :. B. asucase should be ensured in all cases of arrest and detention.

d Simple and fool-proof procedures should be introduced for promptregistration of first information reports relating to all crimes.

e !omputeri(ation, video-recording, and modern methods of records

maintenance should be introduced to avoid manipulations, insertions,

substitutions and ante-dating in regard to D'$s, Caha(ars, inquest

proceedings, ort-mortem $eports and Statements of #itnesses etc.

and to bring in transparency in action.

f 7n independent investigating agency Epreferably the respectiveAuman $ights !ommissions or !'F may be entrusted #ith adequate

po#er, to investigate complaints of custodial violence against olice

personnel and ta"e stern and speedy action follo#ed by prosecution,

#herever necessary./8

21 Victim ,ntitled or Compensation:

There is indeed no e!press pro#ision in the Constitution o India or grant o compensation or #iolation o a undamental

right to lie" nonetheless" this Court has $udicially e#ol#ed aright to compensation in cases o established unconstitutionaldepri#ation o personal liberty or lie.%1 &ward o compensation as a public law remedy or #iolation o the

/8 Sube Sin*$ v. State of ar6ana 200?Cr.L. ?12!2 ?SC



undamental rights enshrined in &rticle 21 o the Constitution"in addition to the pri#ate law remedy under the 'aw o Torts"was e#ol#ed in the last two and hal decades.%2 &rticle ()*+ o the International Co#enant on Ci#il and ,olitical ights" 1(

)ICC,+ pro#ides that /anyone who has been the #ictim o unlawul arrest or detention shall ha#e enorceable right tocompensation/. 0o one can with impunity set theundamental rights at naught or circum#ent them" and thatthe Courts powers in this regard are as ample as the deenceo the Constitution reuires.%3

In e!ceptional cases compensation may be awarded in apetition under &rticle 32. The inringement o the

undamental right must be gross and patent" that is"incontro#ertible and e! acie glaring and either suchinringement should be on a large scale aecting theundamental rights o a large number o persons" or it shouldappear un$ust or unduly harsh or oppressi#e on account o their po#erty or disability or socially or economicallydisad#antaged position to reuire the person or personsaected by such inringement to initiate and pursue act inthe ci#il courts.%4

elie in e!ercise o the power under &rticle 32 or 22 wouldbe granted only )when+ it is established that there has beenan inringement o the undamental rights o the citizen andno other orm o appropriate redressal by the court in theacts and circumstances o the case" is possible.%* & claim inpublic law or compensation or contra#ention o human

/1 eelabati e$era v. State, 1++4 A SC- 24 3 '.K.a&u v. State of -.., A 1++7 SC

103 (1++7) 1 SCC !13 1++7 Crl.L..7!4.

/2 Sube Sin*$ =&. State of ar6ana 200?Cr.L. ?12!2 ?SC

/ Huinn v. 6an (1+#) 70 (122)

/) /. C. /e$ta v&. %nion of ndia, 1+87 (1) SCC 4+#

/* ilabati e$era v&. State of Dri&&a, 1++4 (2) SCC 7!



rights and undamental reedoms" the protection o which isguaranteed in the Constitution" is an ac5nowledged remedyor enorcement and protection o such rights" and such aclaim based on strict liability made by resorting to a

constitutional remedy pro#ided or the enorcement o aundamental right is distinct rom" and in addition to" theremedy in pri#ate law or damages or the tort resulting romthe contra#ention o the undamental right.% It may benecessary to identiy the situations to which separateproceedings and principles apply and the courts ha#e to act6rmly but with certain amount o circumspection and sel-restraint" lest proceedings under &rticle 32 or 22 aremisused as a disguised substitute or ci#il action in pri#ate

law.%%

&n action or damages lies or bodily harm which includesbattery" assault" alse imprisonment" physical in$uries anddeath. In cases o assault" battery and alse imprisonment thedamages are at large and represent a solatium or the mentalpain" distress" indignity" loss o liberty and death.%7 &ward o compensation against the 8tate is an appropriate andeecti#e remedy or redress o an established inringement o a undamental right under &rt.21 by a public ser#ant.%(

22 ;uantum Of Damaes:

In the assessment o compensation" the emphasis has to beon the compensatory and not on puniti#e element. Theob$ecti#e is to apply balm to the wounds and not to punishthe transgressor or the oender" as awarding appropriate

/ $im Sin*$ v&. State of @K, 1+8# (!) SCC 77 3 eo9le& %nion for 'emo"rati" i*$t& v&. oli"eCommi&&ioner, 'el$i oli"e ead5uarter&, 1+8+ (!) SCC 740.

// ilabati e$era v&. State of Dri&&a, 1++4 (2) SCC 7!

/3 Sa$eli, A ;omen& e&our"e& Centre v. Commi&&ioner of oli"e, 'el$i and ot$er&, A 1++0

SC #143 (1++0)1 SCC !223 (1+8+)1 /L(Crl)72

/6 a>ammal v. State of amil adu, (2008)2 /L(Crl)1!743 2008 Cr.L..2280 /ad.



punishment or the oence )irrespecti#e o compensation+must be let to the Criminal Courts in which the oender isprosecuted" which the 8tate" in law" is duly bound to do.79

The claim is not a claim in pri#ate law or damages or the

tort o alse imprisonment" under which the damagesreco#erable are at large and would include damages or losso reputation. It is a claim in public law or compensation ordepri#ation o liberty alone.71 To assess compensation or thewrongul death o any person" the principles or assessingcompensation under the :otor ;ehicles &ct" 1(77 can beapplied.72 <hen a person died in an unnatural mannerbecause o the carelessness o the police o=cials" the >ighCourt in its writ $urisdiction awarded compensation o

s.2"99"999?-.73

23 Ci'il 6emedy Is (ot 0arred:

The award o compensation in the public law $urisdiction isalso without pre$udice to any other action li5e ci#il suit ordamages which is lawully a#ailable to the #ictim or the heirso the deceased #ictim with respect to the same matter orthe tortuous act committed by the unctionaries o the 8tate. The relie to redress the wrong or the established in#asion o the undamental rights o the citizen" under the public law $urisdiction is in addition to the traditional remedies and notin derogation o them. The amount o compensation asawarded by the Court and paid by the 8tate to redress thewrong done" may in a gi#en case" be ad$usted against anyamount which may be awarded to the claimant by way o damages in a ci#il suit.74

38 '.K.a&u v. State of -.., A 1++7 SC 103 (1++7) 1 SCC !13 1++7 Crl.L..7!4.

31 /a$ara> v. Attorne6 eneral of rinidad and oba*o (1+78) 2 All F 70,

32 T.8e5aran #. 8tate o T.0. @ Ars." 2010 CIJ 73 IPJ

3 Santosh Bumari v. State of A.. and others, 2883 !r.%.<. EN4!F ** EA..F

3) '.K.a&u v. State of -.., A 1++7 SC 103 (1++7) 1 SCC !13 1++7 Crl.L..7!4.

Custodial Violence

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