Custodial Death : Critical Review
Authored by : Sejal Sharma
Custodial death, Constitution of India, Indian Evidence Act 1872, Code of Criminal Procedure 1973, Police Act 1861, Indian Penal Code, 1860, D.K.Basu guidelines and Tamil Nadu controversy.
This article is about the custodial death and includes both the judicial custody and the police custody. There are many laws in relation to the custodial deaths, these are mentioned in the constitution of India like the Art 20,21,22 and the other statutory laws like the Indian Evidence Act 1872, Police Act, Code of Criminal Procedure 1973 etc. After that there are various landmark judgments like the D.K.Basu case. And the recent controversy of Tamil Nadu from which the whole India is burning with anger.
Custodial deaths mean the death in the custody whether it is judicial or the police custody. According to the report by the rights against the custodial torture across the world drafts a report which reveals the scenario in the India that in 2019: 1,731 people dies in the custody in the India, in which 1,606 died in the judicial death and the 125 in the police custody1. Most of the people come from the vulnerable communities like the Muslims, schedule tribes and the schedule caste. This also includes the women and the child. They use the criminal forces and such torturous practices.
These are some of the remedies against the custodial death which are mentioned in the constitution of India and the other statutes.
1.) Constitution of India: This means that whether the person is in custody or not, he should never be deprived of his fundamental rights and can move to the Supreme Court under Art 32.
● Article 20 of constitution of India- this gave the person right against the conviction. It has three clauses- ex-post facto law, right against self- incrimination and the double jeopardy. This protects the person from the brutality of the police.
● Article 21 of the constitution of India- this means the right to life is the more than just the mere animal existence. And the duty of state to protect from the torture and cruelty.
● Article 22 of the constitution- this gave the fundamental of the arrests, that ground of arrest should be communicated to the person , he has right to choose his lawyer and have to be produced before the magistrate within 24 hours.
2.) Indian Evidence Act 1872: according to sec 25 if any person confesses in front of the police than it cannot be used as the evidence against him. And the evidences collected by doing torture are also not acceptable by the court.
3.) Code of Criminal Procedure, 1973: The section 46 and 49 clearly saves the person from the torture in custody who is the accused of the offence punishable with the death and the imprisonment.
Sec 50-56 also states that if person claims that torture is done with him, then the magistrate should gave the order for the medical examination. And if magistrate doesn’t follow the procedure then the High Court can take the action under the sec 482 of the CrPC. Sec 176 states the compulsory magisterial inquiry in case of torture.
4.) Indian Police Act, 1861: the section 7 and the 29 of this Act clearly states that if any policeman doesn’t discharge his duty properly then he can be dismissal, penalty can be imposed and the can be suspend.
5.) Indian Penal Code, 1860: after the Mathura rape case, the amendment took place, and section 376(1)(b) penalize the police officers in case of the custodial death. Other section like that 330, 331, 342 and the 348 of the IPC also deter the police officer to not use third degree and causing the other torture.
Landmark judgment on the custodial death:
● Joginder kumar vs. state of U.P. and others ( AIR 1349: 1994SCC(4) 260)
This case involves in Article 21 and the Article 22. The court held- the police officer should inform the accused about the ground of its arrest. And police should follow the rules as prescribed in the Article 21 and Article 22 of the constitution.
● J.Prabhavathiamma vs. the state of Kerala& others WP(c) No. 24258 of 2007(k) and CRL.R.P.2902 of 2007
In this case, the 2 police personnel were sent to the death sentence in the offence of a death of a metal shop worker in their custody. This sentence was given by CBI court and said that this was the brutality done by them and will not be accepted.
● D.k.Basu vs. state of West Bengal (1997)(1) SCC 416
This is the landmark case in which the court issues the 11 guidelines and the statutory safeguards in relation to arrest and the detention. Like to inform the detainee about the grounds, date and time, prepare a memo, right to the detainee to hire his legal practitioner of his choice and the take in front to the magistrate within the 24 hours. 2
Recent case related to the custodial death:
The recent controversy of Tamil Nadu where the father Jeyaraj and the son Fenix were brutally tortured and died in the police custody. In this case, the father and the son was running a mobile phone shop in the sathankulam town in tuticorin district where they were arrested on the ground that they keep their shop open beyond the permissible time limit. As the Tamil Nadu has imposed the strict lockdown to curb the covid-19. They were brutally assaulted in the jail and after few days they were pronounced to be dead in the jail.
The cases of the custodial deaths are steadily increasing. So, to curb this situation we need to have stringent laws regarding it and the human Rights Commission should also speak up on this issue. These types of offence clearly show the excessive use of power in the wrong direction. The police personnel are not supreme; all are bounds by the rule of law and the law of the land i.e. the constitution of India.
1.) Arsheen Kaur, custodial death in India are a cold- blooded play of power and class,14 July 2020, https://thewire.in/rights/custodial-deaths-in-india-are-a-cold-blooded-play-of-power-and-class
2.) Deeksha Saggi, custodial Deaths and Role of judiciary: A Critical Analysis, 25 July 2020, https://www.latestlaws.com/articles/custodial-deaths-and-role-of-judiciary-a-critical-analysis/