Custodial death in India

A death in custody is a death of a person in custody of the police, other authorities or in prison. In the 21st century, death in custody remains a controversial subject, with the authorities often being accused of abuse, neglect, racism cover-ups of the causes of these deaths.

Custodial death is one of the worst crimes in a civilized society governed by rule of law. Rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available. The data of custodial death is recorded in NCRB (National Crime record bureau).

Independent investigation in a case of custodial death/torture, at least in the initial stages, is a big problem, owing to the obvious fact that the police are called upon to probe against themselves. The Supreme Court had commented about the ‘ties of brotherhood’ within police, which stall fruitful investigation in cases of custodial violence.

In many cases, investigation is later handed over to independent agencies like CBI, or Special Investigation Teams, mostly as a result of cases fought by the relatives of the victims. But such a subsequent transfer of probe cannot assure concrete results, if the investigation in the initial crucial stages of evidence collection such as post-mortem, inquest, etc., has been manipulated.

To take care of this problem, the law has envisaged a process of parallel Magisterial Inquiry, immediately after the incident.

This is as per Section 176(1A) of the Code of Criminal Procedure. Inserted after 2005 amendment to CrPC.

Section 176(1) CrPC states that a Magistrate, who is empowered to hold inquests with respect to an unnatural death, may hold an inquiry into the cause of death in addition to the investigation held by the police officer. This is only a general, empowering provision, giving Magistrate the discretion to hold such an inquiry. Another fact to be noted is that such inquiry can be held either by an Executive Magistrate or Judicial Magistrate.

On the other hand, Section 176(1A) is a special provision to deal with cases of death, disappearance or rape in police custody. The provision says that in such cases, the Judicial Magistrate or the Metropolitan Magistrate, within whose local jurisdiction the offence has been committed, shall hold an inquiry in addition to the inquiry or investigation held by the police.

Few cases registered against police

In the past decade, 472 cases of custodial death were registered against police personnel, and it is unclear whether each case pertains to a single death or multiple deaths.

NCRB data on arrests of police personnel in cases of custodial deaths are available only since 2017. since then, only 144 cases were registered while 255 deaths were recorded during the same period. Since 2017, 84 police personnel have been arrested and 56 have been charge-sheeted.

While 1,004 deaths in police custody have taken place in the past decade, only 4 police personnel have been convicted during this period (one in 2010 and three in 2013). It is also unclear whether crime in India data on conviction of police personnel pertain to the same year as the death in police custody.

Barriers in obtaining the conviction of police personnel in cases of custodial deaths have been pointed out by multiple reports, including the Law Commission of India’s 1994 report on Custodial Crimes (152nd report), Human Rights Watch’s 2016 report Bound by Brotherhood: India’s failure to end killings in police custody, and the national campaign against torture’s India: annual report on torture, 2019. all refer to the requirement of prior sanction to prosecute a public servant under section 197 Crpc, lack of evidence in custodial settings, and witnesses turning hostile, among other factors.

Since 1953, data in the annual Crime in India reports have been used to understand crime patterns and inform policy. Analysis reveals that there is holistic or accurate information on the reasons for deaths in custody and the outcomes of inquiries into these deaths. This can be improved by incorporating these changes:

Crime in India reports must include key points on mandatory inquiries into deaths in custody. In the last 10 years, the titles of columns providing information about judicial and magisterial enquiries have been inconsistent. From 2010-2013, enquiry “ordered” and enquiry “conducted” were clubbed together and seemingly used synonymously. This constrains external analyses to presume they mean the same thing. After 2013, a judicial enquiry was reported as either only ordered or conducted- again without explanation- leaving it unclear in how many cases mandatory judicial inquiry was ordered, and how many cases inquiry was actually conducted.

Statistics of custodial death in India

In the last 5 years (2015-2019), 159 of 444 deaths in police custody (36%) have been reported as suicides, compared to 136 of 560 deaths (24%) from 2010-2014. in 2019, 81% of the reported reasons were either death by suicide (39%) or illness/death in hospitals (42%) during treatment. Tamil Nadu, Maharashtra, and Gujarat accounted for more than 60% cases.                                                               In some instances, police initially claimed that the deaths were by suicide, but families alleged foul play in custody, a brief review of media reports suggests. Instances include the death of Karan in Ludhiana, Punjab, in April 2019; Balraj Singh in Delhi and Jaspal Singh in Faridkot, Punjab, in May 2019; and Dhiraj Singh Rana in Uttarakhand and Bajinder Singh in Amritsar, Punjab, in July 2019.

Media reports also point to some instances where reported suicides in custody may have been prompted by custodial torture, for instance, Ganesh Ravidas in Nalanda, Bihar in July 2019 and Bittu in Hansi, Haryana in August 2019.

In the 1,004 cases of deaths in police custody over the past decade, 297 judicial enquiries were ordered, as were 402 enquiries by an executive magistrate. It is unclear whether each enquiry pertained to a single death, and whether some of  these enquiries were into the same deaths.

This clearly shows that enquiries were not ordered in considerable number of police custody deaths, a clear violation of CRPC,” said Vikram Singh, former director general of police, Uttar Pradesh, “This shows lack of accountability in the system even in such grave cases of custodial deaths.”

In Uttar Pradesh, 73 enquiries were conducted, almost all (68  of 73, or 93%) by an executive magistrate, and no judicial enquiries. In Punjab, 25 of 29 enquiries were by an executive magistrate and not a judicial magistrate.

In 10 states- Chhattisgarh (in 2013), Gujarat (in 2010), Kerala (in 2019), Madhya Pradesh (in 2015), Meghalaya (in 2013), Odisha (in 2015 and 2017), Rajasthan (in 2011 and 2013), Tamil Nadu (in 2014), Tripura (in 2015 and 2019), and West Bengal (in 2013)- the number of enquiries reported were higher than number of reported deaths. No explanation has been given for this. These enquiries could relate to deaths in previous years, but this is not stated.

Amendment in Crpc Provisions

Section 176(1A) can be be broken down as under:

  • This inquiry is parallel to the police investigation into custodial death/rape/disappearance.
  • This inquiry cannot be done by an Executive Magistrate and must be carried out by a Judicial Magistrate.
  • This inquiry is mandatory (denoted by the use of word “shall” in distinction with the use of word “may” in Section 176(1).

Section 176(5), also inserted after 2005 amendment, mandates that the Magistrate holding such inquiry should, within 24 hours of the death of the person, forward the body with a view to it being examined to the nearest Civil Surgeon. If it is not possible to do so, reasons must be recorded in writing.

In 1994, the Law Commission of India, after taking note of abysmal rates of conviction in cases of custodial violence, had recommended the insertion of these provisions- Sections 176(1A) and 176(5) – in its 152nd report. They were inserted a decade later, as per 2005 amendment.

The National Human Rights Commission has also issued guidelines for Magisterial Enquiry, as per which it should cover the following aspects:

  1. The circumstances of death
  2. The manner and sequence of incidents leading to death
  3. The cause of death
  4. Any person found responsible for the death, or suspicion of foul play that emerges during the enquiry.
  5. Act of commission/omission on the part of public servants that contributed to the death
  6. Adequacy of medical treatment provided to the deceased.

The NHRC has also set a two-month deadline for the completion of enquiry by Magistrate.

Non-compliance of Section 176(1A)

Despite the mandatory nature of this provision, its compliance is highly rare.

In January 2020, the Supreme Court had issued notice on a Public Interest Litigation petition seeking a directive to all States/UTs for strict implementation of Section 176(1A). The PIL filed by human rights activist Suhas Chakma stated that out of 827 cases of death or disappearance of persons in police custody between 2005 and 2017, judicial inquiry was ordered only in 166 cases i.e. 20% of the total cases.

“Section 176(1A) since its enactment has been left untouched, remained only in the statute books, and not implemented on the ground with the consequence of rising custodial crimes.,” the pleas said.

Even in the Jeyaraj-Bennix custodial death cases of Sathankulam, Tamil Nadu, the Madras High Court had to make a suo moto intervention to order enquiry by the Kovilpatti Judicial Magistrate.

Registration of FIR

Registration of FIR in a case of custodial death is mandatory.

The Supreme Court clarified in the decision Lalitakumari vs State of  UP (2014) 2 SCC 1 that ‘registration of FIR is mandatory under Section 154 of the Code, if the information discloses a commission of a cognizable offence and no preliminary inquiry is permissible in such a situation’.

Even Section 176(1A) speaks of regular police investigation in cases of custodial death, and the Magisterial Inquiry is envisaged as in addition to police investigation.

As regards the Sathankulam case, the police had not lodged an FIR with respect to the custodial deaths at the time of writing this piece.

The Law Commission of India had foreseen this problem of police delaying lodging of FIR in cases of custodial deaths and had suggested in its 152nd report the insertion of a new provision to enable any person to approach a judicial authority on the failure of police to register FIR.

This was proposed to be inserted Section 154A in the Crpc.

Is there need for sanction under Section 197 Crpc to prosecute police officers accused of custodial torture?

The Supreme Court, in Devinder Singh and others vs State of Punjab through CBI, held that protection of sanction under Section 197 Crpc was not available for offences which have no connection with official duties.

In this case, a bench comprising Justices V Gopala Gowda and Arun Mishra upheld the argument of prosecution sanction for prosecution was not required in cases of fake encounter and custodial torture.

The top Court observed that “public servant is not entitled to indulge in criminal activities”, and that the protection under Section 197 Crpc has to be “construed narrowly and in a restricted manner”.

The Court added that to claim protection under Section 197 Crpc, it has to be proved that the act was intrinsically connected with official duties.

Since custodial death and torture is inflicted by the police, which is an organ of the state, and it deprives the victim their right guaranteed under Article 21 of Indian Constitution, the Supreme Court has held in various cases for payment of compensation to the family of the victim.

In Nilabati Behera v State of Orissa, the Supreme Court awarded compensation to Nilabati, for the death of her son in police custody. In the same case it was also held that the Supreme Court has a wide range of powers under Article 32 and it covers the power to award compensation.

In Sube Singh v. State of Haryana, the Supreme Court, while considering a writ petition under Article 32, where the petitioner alleged illegal detention, custodial torture and harassment to family members, expanded the principles laid down in the Nilabati case by observing that compensation as a remedy in case of custodial torture or death is available only if the proof of such an act is “established or is incontrovertible” and not in the case where such violation of Article 21 is “doubtful or not established”. This was done to guard the police against frivolous and motivated compaints.

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