Introduction:
The term “custodial violence” is in the news from the past few days. From the George Floyd case to Jayraj and Phoenix case various media platforms have been quite vocal about this issue. The people are killed in the custody of police officials and no question is raised over their act.
The term “custodial violence” means whenever violence takes place in the custody of a police officer. The third degree torture is adapted by the police officials to take the confession of the accused. The third degree torture force the person to claim those allegations as well which he didn’t even commit.
Legal position in India:
The UN has formed a convention on Human Rights. The charter of 1975 of UN deals with the provisions related to torture. They have even defined the term torture as “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”[1]
India has signed the Charter of 1975 but it is not ratified. In the year 2010, “Anti torture Bill” was brought in the Parliament for discussion where the bill didn’t get the assent from Rajya Sabha. No action was taken to pass the said bill and later on the bill got lapsed. India’s stand on custodial violence is not that firm where the rights of the accused can be protected. However, provisions have been laid down in different legislations where the rights of an accused person are discussed.
Laws in India:
Indian Penal Code:
Section 21: The term “public servant” has been defined where it is termed that any person who is discharging any public duty will be treated as a public servant which includes Judges, Arbitrators, Police officers, etc.
Section 330: The provision talks about voluntarily causing hurt to extort confession. It clearly suggests that no person can take confession from other person which may lead to detection of an offence. The person who is found guilty under this provision shall be punished with imprisonment which may extend to 7 years and shall also be liable to fine.
Section 348: If any person is wrongfully confined for the purpose of extorting confession which may lead to detection of an offence or misconduct, then the person who wrongfully confined the other person will be held liable for imprisonment which may extend to 3 years and shall be liable to fine.
Criminal Procedure Code:
Section 197: It acts as a shield for public servants where they have been given an immunity that while discharging any public duty if they commit anything wrong no court can take cognizance against them.
Rights of arrested person:
Right to know the grounds of arrest.
Medical examination of the accused after every 48 hours.
Health and safety to be maintained of the accused.
Accused to be produced before the Magistrate in 24 hours of arrest.
If the arrest is without warrant the written permission is required from the senior police officer.
If a person is arrested without warrant it is the duty of the police officer to intimate the arrested person that he may be released on bail (not applicable in non bailable offence) and may arrange for sureties on his behalf.
Indian Evidence Act:
Section 24: It states that in any case if confession is made by inducement, threat or promise then it will not be considered as a valid confession.
Section 25: If any confession is made to the police officer in his custody then it will not be considered as a valid confession.
Constitution of India:
Article 22(2): It states that the accused person needs to be produced in 24 hours of arrest before the Magistrate.
Case Laws:
In the case of D.K. Basu vs. State of West Bengal[1], the Hon’ble court laid down certain guidelines that were to be followed by the police officials while arresting a person. The guidelines are as follows:
- Police officer to wear names and designations while making arrests.
- Arrest memo to be made.
- Information of the arrest to be given to relatives or friends of the accused.
- Medical examination to be done every 48 hours.
- Copy of all the documents to be given to the Magistrate.
In the case of Prakash Singh vs. Union of India[2], the Hon’ble court laid down that an authority should be created to keep a check on matters related to custodial violence.
However, no authority has been created till date.
Conclusion:
There has been a tremendous increase in the cases related to custodial violence in India. India shall ratify the relevant UN convention and the guidelines laid down in the D.K Basu case must be followed. It is the need of an hour that “Anti Torture Bill” shall be passed in India and also an authority must be created to keep an eye on the matters where the custodial violence took place. There should be an increase in human rights training given to police officials. Also, with so much technical advancements it is important to adapt technology in every filed which includes the police department as well.
[1] https://www.ohchr.org/en/professionalinterest/pages/cat.aspx, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984.
[2] AIR 1997 (1) SCC 416.
[3] Writ Petition (civil) 310 of 1996.