In a civilized society governed by the Rule of Law, custodial death is one of the most severe crimes. Custodial fatalities can occur as a result of not given necessary treatment at the appropriate time, as a result of consequences from police physical abuse, and some deaths remain questionable. Custodial death is a heinous violation of human rights. Custodial violence is the most common cause of death in jails and lock-ups. Custodial mortality has increased in the world’s biggest democracy, India. Our Constitution establishes fundamental rights to ensure citizens’ essential rights and liberties. In the last decade, the number of people killed in police custody has increased. In the cases of custodial deaths, the police officer in charge must be held liable rather than the state as per National Human Right Commission.
In general, custodial death refers to a person’s death in either judicial custody or police custody. If a people dies in custody, then it amounts to custodial death, custodial death is the result of the unnecessary use of force to torture the convicted person, and inhuman treatment given to him during custody that could take the life of the convicted person. When an F.I.R. is filed by police against someone and a police officer arrests him so that no further crime has been done by them, it is said to be police custody. When a suspected offender is sent to jail by Judicial order, either in police custody or jail it is called judicial custody.
STATUTORY PROVISION FOR CUSTODIAL DEATH IN INDIA
Article 20(1) of the Indian Constitution provides that, no person shall be convicted of any offense except for violation of a law in force at the time of the commission of the Act charged as an offense, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offense. In short, the provision forbids the introduction of a new offense having a retroactive application.
Article 20(3) states that no person accused of any offense shall be compelled to be a witness against himself. This is important because it serves as a protection when coercion and torture are used to collect evidence from the accused.
Article 21 of the Indian Constitution (Right to Life and Personal Liberty) does not expressly prohibit custodial suffering, although its ambit is too broad. It states that no individual shall be denied life or individual freedom except following the legal plan. The right includes protected assurance from anguish, attack, or harm, and serves as a protection against incarceration torment, and savagery.
Article 22(2) states that every person who is arrested and detained in custody shall be produced before the nearest magistrate within twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall be detained in custody beyond the said period without the authority of a magistrate. This right empowers him to seek bail, report his concerns stemming from any maltreatment meted out to him in jail, and request an independent investigation of the legitimacy of his incarceration.
Criminal Procedure Code, 1973
Section 49 allows the police to use retainment to that extent which is necessary to prevent a person from escaping.
Section 50A requires police to give information related to an arrest, to the arrestee’s friends, family, or any other person selected by the arrestee.
Section 176 provides that the magistrate can give an order to inquire about custodial death to know the cause of death.
Indian Penal Code, 1860
A police officer murdering an accused in custody shall be punished for the offense of murder under Section 302.
a police officers can be punished for custodial death under ‘culpable homicide not amounting to murder (Section 304).
Under sections 330 and 331 a police officer can be punished for causing intentionally inflicting bodily harm, and voluntarily inflicting serious bodily harm, to a suspect to the confession of the crime.
Indian Evidence Act, 1872
Section 25 provides that a confession made to the police shall not be made him accused. Section 26 states that if a person admits his guilt to anybody other than a Magistrate while in police custody, his confession shall not be used against him.
CASE LAW ON CUSTODIAL DEATH
Joginder Kumar v State of U.P. and Others 1994, Supreme Court laid down certain guidelines regarding torture in custody. When the arrested individual is transported to the police station, the officer must tell him of his privilege. The person who was notified of the arrest must be recorded in the written.
D.K. Basu v State of West Bengal 1997, in this case, the SC released an 11-point guideline list. All staff involved in the detained person’s questioning must be listed in a register. At the moment of the arrest, a memorandum of arrest should be prepared. The inmate must also sign it, and it must include the time and date of the arrest. The time, place of detention, and custody of a detainee must all be communicated to the detainee. Within 8 to 12 hours following the arrest, police in the impacted region telegraphed the arrest. At the location of custody, an entry must be made in the Case Diary.
In India, 5 people die every day while in police custody. Supreme Court also defined custodial death as one of the worst crimes in a civilized states governed by law. Judges and prosecutors must guarantee that persons are protected from torture within the scope of the legal system. Even though our laws have provisions against custodial death, custodial violence still exists. A person in police custody cannot be denied essential rights such as life, liberty, or dignity, and they must be safeguarded by the law. Any criminal justice reform must take into consideration and aim to eliminate the core cause of its dysfunction.
Author’s Name: Anshul Kumar Verma (Dr. Ram Manohar Lohiya National Law University, Lucknow)