HISTORICAL BACKGROUND OF THE CASE
The case deals in depth the issue of death and like violence in police lockups and custody. Custodial violence means any form of torture in police custody. The word torture in the context of this case means the act of forcing the prisoner to say or to do something against his will; which may be achieved by inflicting injuries, pressure, both physical and mental. Commission of a crime by a public servant against an arrested or detained person, while in custody, amounts to custodial crime. n all custodial crimes, it is not only bodily pain that prisoners suffer, but also mental agony and hardship within four walls of police lock up. !mong these, Custodial death is perhaps one of the worst crimes in a civili"ed society governed by the #ule of law. ! letter letter by the $xecut $xecutive ive Chairm Chairman, an, %egal %egal !id !id &ervic &ervices, es, 'est (engal, addressed to the )on*ble Chief +ustice of ndia drawing his attention to certain news items published in various newspapers regarding the deaths in police custody and lock-ups in / was treated as writ petition under the public interest litigation category. The letter called for the the need need to exam examin inee the the issu issuee in dept depth h and and to deve devellop 0cus 0custtody ody jurisprudence1 and formulate modalities for awarding compensation to the victim and2or family members of the victim for atrocities and death caused in police custody and to provide for accountability of the officers concerned. (ased on this, notice was sent to respondents, &tate of 'est (engal in 3.
'hile the writ petition was under consideration a letter addressed by &hri !shok !shok 4umar +ohri, in 3, to the )on*ble )on*ble Chief +ustice of ndia
drawing the attention of the Court to the death of one 5ahesh (ihari of 6ilkhana, !ligarh in police custody was received. That letter was also treated as a writ petition and was directed to be listed along with the writ petition filed by &hri 7.4. 7.4. (asu. 8nderstanding the grievance of the situation &upreme Court, issued notice to all the &tate 9overnment and to the %aw Commission of ndia with a re:uest that suitable suggestions may be made in the matter. 7uring the course of hearing of the writ petitions, the Court felt necessity of having assistance from the (ar and 7r. !.5. &inghvi, senior advocate was re:uested to assist assi st the Court as !micus Curiae. %earned Counsel for the different &tates made effort to show that 0everything was well1 within their respective &tates and made certain suggestions for formulation of guidelines by this Court to minimi"e, if not prevent, custodial violence and for award of compensation to the victims of custodial violence and the kith and kin of those who die in custody on account of torture. ilabeti (ehari v &tate of &C? /@, was to show that that every everyth thin ing g was was well well with within in thei theirr resp respec ecti tive ve &tat &tates es and and it was maintained that the police was not hushing up any matter of lock-up death and that wherever police personnel were found to be responsible for such deat death, h, acti action on was was bein being g init initia iate ted d agai agains nstt them them.. The resp respon onde dent ntss characteri"ed the writ petition as misconceived, misleading and untenable in law. The %aw Commission of ndia also in response to the notice issued by this Court forwarded a copy of the = th #eport regarding 0njuries in police custody and suggested incorporation of &ection A-( in the ndian $vidence !ct.1
ISSUES INVOLVED
The petitions petitions raise important important issues concerning concerning police powers, powers, including including whet whethe herr mone moneta tary ry compe compens nsat atio ion n shou should ld be awar awarded ded for for esta establ blis ishe hed d infringement of the Bundamental #ight guaranteed by !rticles and of the Constitution of ndia.
ANALYSIS OF THE ISSUES
NATURE OF OF THE ISSUE 0Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish s:uee"ing in your chest, cold as ice and heavy as a stone paraly"ing as sleep and dark as the abyss. Torture Torture is despair and fear and rage and hate. t is desire to kill and destroy including yourself1 Adriana P. Barto.
Dr. Anand J. mentions J. mentions that custodial violence is a matter of great concern and is naked violation of human dignity and degradation, which destroys, to a very large extent, the individual personality. t is aggravated by the fact that it is committed by the persons who are supposed to be protector of the citi"ens. t is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. Thus it strikes at the #ule of law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. The protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free society. t is to be understood that worst form form of viol violat atio ion n of huma human n righ rights ts take takess plac placee duri during ng the the cours coursee of inve invest stig igat atio ion, n, when when the the poli police ce with with a view view to secu secure re evid eviden ence ce or confe confessi ssion on ofte often n reso resorts rts to =rd degree degree method methodss includ including ing tortur torturee and
adopts techni:ues of screening arrest by either not recording the arrest or describing the deprivation of liberty merely as a prolonged interrogation. (y torturing a person and using = rd degree methods, methods, the police police would be accomplishing behind the closed doors what the demands of our legal order forbid. o society can permit it. !nother thing, which aggravates the matter, is the deficiencies with regard regard to evid evidenc encee for for prov provin ing g such such cust custod odia iall tort torture ure.. $ven $ven wher wheree a formal prosecution is launched by the victim or his kith and kin, no direct evidence evidence is available available to substantiat substantiatee the charge of torture torture or causing causing hurt resulting into death; as the police lock-up where generally torture or injury is caused is away from the public ga"e and the witnesses are either police men or co-prisoners who are highly reluctant to appear as prosecution witnesses due d ue to fear of retaliation by the superior officers o fficers of the police. t is often seen that when a complaint is made against torture, death or injury, in police custody, it is difficult to secure evidence against the policemen responsible for resorting to = rd degree methods since they are in charge of police station records which they do not find difficult to manipulate. 7eath in custody is not shown in the records of police station and every effort is made to show that the arrested person died after he was released from custody. State tate of
Madhya Pradesh
Shya!s" a!s"n nder
Triedi
#
Ors.
MANU$S%$&' MANU$S%$&'(($)* (($)**+ *+ is one such example where one athu (anjara
was tortured at police station and due to extensive injuries caused to him he died in police custody at the police station. The defence set up that the victim was released one day earlier from his death and that he died due to pain in his chest the next day. !ny complaint against such torture is generally not given any attention by the police officer because of ties of brotherhood. o B# at the instance of the victim or his kith and kin is generally generally entertained entertained and even the higher police police officers officers turn a blind blind eye
to such such compla complaint ints. s. Conse: Conse:uen uently tly,, prosec prosecuti ution on agains againstt the delin: delin:uen uentt officers generally results in ac:uittal.
P,OVISIONS INVOLVED
&ome of the constitutional safeguards provided to person with a view to protect his personal liberty against any unjustified assault by the &tate areD Bundamental rights occupy a place of pride in the ndia Constitution. Arti-e () provides Eno person shall be deprived of his life or personal liberty expect according to procedure established by lawE. 6ers 6erson onal al libe libert rty y, thus thus,, is a sacr sacred ed and and cher cheris ishe hed d righ rightt unde underr the the Constitution. The expression Elife of personal libertyE has been held to include the right to live with human hu man dignity and thus it would also include within itself a guarantee against torture and assault by the &tate or its functionaries. Arti-e (( guarantees protection against arrest and detention in certain
cases and declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and the shall not be denied the right to consult and defend himself by a legal practitioner of his choice. ch oice. %a"se /(0 of Arti-e (( directs that the person arrested and detained in custody shall be produced before the nearest 5agistrate 5agistrate within a period of A hours of such arrest, excluding excluding the time necessary for the journey from the place of arrest to the court of the 5agistrate. Arti-e (&/10 of the Constitution lays down that a person accused of an
offence shall not be compelled to be a witness against himself. These are some of the constitutional safeguard provided to a person with a view to protect his personal per sonal liberty against and unjustified assault by the &tate, n tune with the constitutional guarantee a number statutory provisions also
seek to project personal liberty, dignity and basic human rights of the citi"ens. Chapter F. F. of Criminal 6rocedure Code, Code, 3= deals with the powers of arrest of a person and the safeguard which are re:uired to be followed by 2)3 %r. the police to protect the interest of the arrested person. Se-tion 2)3 P.%. confers powers on any police officer to arrest a person under the
circumstances specified therein without any order or a warrant of arrest from a 5agistrate 5agistrate.. Se-tion 24 provides the method and manner of arrest. 8nder this &ection no formality is necessary while arresting a person. 8nder Se-tion 2*, the police is not permitted to use more restraint than is necessary to permitted to use more restraint than is necessary to prevent the escape of the person. Se-tion +& enjoins every police officer arresting any person without warrant to communicate to him the full particulars of the offence for which he is arrested and the grounds for such arrest. The police officer is further enjoined to inform the person arrested that he is entitled to be released on bail and he may arrange for sureties in the event Se-tion +4 contains a mandatory of his arrest for a non-bailable offence. Se-tion
provision re:uiring the police officer making an arrest ar rest without warrant to produce the arrested person before a 5agistrate without unnecessary Se-tion n +' +' e-hoes e-hoes %a"se /(0 of Arti-e (( of the Constituion delay delay and Se-tio
of
ndia.
There
are
some
other
provisions
also
like &ection
G=,, GA G= GA and and /3 /3 which which are aimed at affording procedural safeguards to a person arrested by the police. 'henever a person dies in custody of the police, Se-tion )'4 re:uires the 5agistrate to hold and en:uiry into the cause of death.
The Law Commission in its 113th 113th Reort re!ommended the insertion insertion o" Se!tion 11 11#$ #$ in the Indian the Indian
E%iden!e
A!t.. The A!t
%aw
Commission recommended in its =th #eport that in prosecution of a police officer for an alleged offence of having caused bodily injury to a person, if there was evidence that the injury was caused during the period when the person was in the custody of the police, the Court may presume that the injury was caused by the police officer having the custody of the person during that period. The Commission further recommended that the court, while considering the :uestion of presumption, should have regard to all relevant circumstances including the period of custody statement made made by the the vict victim im,, medi medica call evid eviden ence ce and and the the evid eviden ence ce with with the the 5agistrate may have recorded. Change of burden of proof was, thus, advocated. These being provisions is to be kept in mind that form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of !rticle of the Constitution, whether it occurs during investigation, interrogation or otherwise. f the functionaries of the 9overnment become law breakers, it is bound to breed contempt for law and would encourage lawlessness. ! citi"en does not shed off his fundamental right to life, the moment a policeman arrests him. The right guaranteed by !rticle cannot be denied to convicts, under- trails, detenus and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are presented by laws.
MEASU,ES SU55ESTED TO %U,B %USTODIAL VIOLEN%E
. Transparen Transparency cy of action action and accountabi accountability lity perhaps perhaps are two possibl possiblee safeguards suggested by &upreme Court in this case.
. 6roper developm development ent work culture culture,, training training and orientati orientation on of police police force force cons consis iste tent nt with with basi basicc human human valu values es is also also re:ui re:uired red to achieve the aim of reducing custodial violence. =. Training Training methodolog methodology y of the police police needs needs restructurin restructuring. g. A. $fforts $fforts must must be made to change change the attit attitude ude and approac approach h of the police personal handling investigations so that they do not sacrifice basic human values during interrogation and do not resort to :uestionable form of interrogation. G. 'ith 'ith a view to bring bring in transpare transparency ncy,, the the presence presence of the counsel counsel of the arrestee at some point of time during the interrogation may deter the police from using = rd degree methods during interrogation. $nd could never justify the means. The interrogation and investigation into a crime should be in true sense purposeful to make investigation effective. effective. There is one other aspect also to be kept in mind , many hardcore hardcore
criminals like extremist, the terrorists, drug peddlers, smugglers who have organised gangs, have taken strong roots in the society. t is being said in certain :uarters that with more and more liberalisation and enforcement of fundamental rights, it would lead to difficulties in the detection of crime crimess commi committ tted ed by such such cate catego gori ries es of harde hardene ned d crimi crimina nals ls by soft soft peddling interrogation. t is felt in those :uarters that, if we lay too much of emphasis on protection of their fundamental rights and human rights such criminals criminals may go scot-free without without exposing any element element or iota or criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a &a'an!ed aroa!h is needed to meet the ends o" ()sti!e. ()sti!e . This all the more so, in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime. crime. The !)re !annot* howe%er* &e worst than the disease itse'" . itse'" .
!n amicable solution could only be a realistic approach in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other.
PUNITIVE
MEASU,ES
#
6UDI%IAL
,I5HT
TO
%OMPENSATION
&ome punitive provisions provisions are contained in the in the ndian 6enal Code, Code , which seek to punish violation of right to life. Se-tion Setion ((& provi provide dess for for puni punishm shment ent to an offi office cerr or auth author orit ity y who who
detains or keeps a person in confinement with a corrupt or malicious motive. Se-tion 11& and 11& and 11) provide for punishment of those who inflict injury
of grievous hurt on a person to extort confession or information in regard to commission of an offence. llustration >a? and >b? to &ection ==@ make ==@ make a police officer guilty of torturing a person in order to induce him to confess the commission of a crime or to induce him to confess the commission commission of a crime or to induce induce him to point out places where stolen property is deposited. &ec &ectio tion n ==@ ==@,, ther theref efore ore,, dire direct ctly ly makes makes tort torture ure during interrogation and investigation punishable under the the ndian 6enal Code.. These &tatutory provisions are, however, inade:uate to repair the Code wrong done to the citi"en. 6rosecution of the offender is an obligation of the &tate in case of every crime but the victim of crime needs to be compensated monetarily also. The Court, where the infringement of the fundamental fundamental right is established established,, therefore, cannot stop by giving giving a mere declaration. t must proceed further and give compensatory relief, nor by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the &tate of not protecting the fundamental fundamental right to life of the citi"en. citi"en.
The reservation reservation to International International Covenant on Civil and Political Rights (ICCPR) Clause (5) of Article 9 which provides which provides that 7anyone 8ho has 9een the i-ti! of "na8f" arrest or detention sha hae enfor-ea9e ri:ht ri:ht to -o!;en -o!;ensati sation< on< by the the 9ove 9overn rnme ment nt of ndi ndiaa had had lost lost its its
relevance due to decisions in various cases awarding compensation for the infringement of Bundamental #ight to life of Citi"ens. The most Nia9eti Behari State of Orissa3 Orissa3 relevant case in this regard is that of Nia9eti
here the )on*ble &upreme Court awarded damages against the &tate to the mother of a young man beaten to death in police custody. The Court held that its power of enforcement imposed a duty to 0forge new tools1 of which compensation was an appropriate one where that was the only mode of redress available. This was not a remedy in tort, but one in public law based on strict liability for the contravention of fundamental rights to which the principle of sovereign immunity does not apply. This case consider that while making an award for compensatory damages in proceedings other than through private law remedies, it is not the harm suff suffer ered ed by an indi indivi vidu dual al is an issu issue, e, it is the the :ual :ualit ity y of cond conduc uctt committed by the delin:uent upon which attention must be focused. The delin:uent must pay a sum which marks the society*s condemnation of his his beha behavi vior or and and whic which h is of suff suffic icie ient nt sign signif ific ican ance ce to puni punish sh it effectively. !ward of exemplary and punitive damages may be made only to prov rovide rec recompense nse to the party for conduct that re:uires condemnation by the Courts. These are not aimed at compensating the victims or his heirs but to punish the delin:uent for his high-handed disregard of the victim*s rights. ndeed, no amount of compensation may revive a physical frame battered and shattered by torture but it would be some solace to the victim or his heirs if the Courts express the society*s into intole lerab rable le beha behavi vior or of the the torm tormen ento torr and and award award comp compen ensa sati tion on as
recompense. The state must be made liable to pay the compensation initially with its right to recover it from the delin:uent so that the victims or their heirs are left to the mercy of tormentor to recover the amount of compensation awarded by the Courts.
DE%ISION AND %OMMENTS
The Court in this case through its analysis suggested the following re:uirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures The The poli police ce pers person onne nell carr carryi ying ng out out the the arre arrest st and and hand handli ling ng the the interrogation of the arrestee should bear accurate, visible and clear iden identtifi ificati cation on and and nam name togs ogs wit with their heir desi design gnat atiions. ons. The particulars of all such su ch police personnel who handle interrogation of the arrestee must be recorded in a register. t was held so also in ,"da Shah State of Bihar , !# = &C @/, ,a=endra Sin:h S!t. Usha ,ani >A? = &CC ==, Bhi! Sin:h State of 6#> , !# !# / / &C AA, AA, Sahei %o!!issioner of Dehi >@? &CC A A = !# >&C?
/@. >? That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by atleast one witness. who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. t shall also be countersigned by the arrestee and shall contain the time and date of arrest. >=? ! person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall
be entitled to have one friend fr iend or relative r elative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. >A? The time, place of arrest and venue of custody custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the %egal !id G? The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained. >/? !n entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names and particulars of the police officials in in whose custody the arrestee is. >3? The arrestee should, where he so re:uests, be also examined at the time of his arrest and major and minor injuries, if any present on his2her body, must be recorded at that time. The Enspection 5emoE must be signed both by the arrestee and the police police officer effecting effecting the arrest and its copy provided to the arrestee. >? The arrestee should be subjected to medical examination by trained doctor every A hours during his detention in custody by a doctor on the panel of approved doctors appointed by 7irector, )ealth &ervices of the
concern concerned ed &tare &tare or 8nion 8nion Territory rritory.. 7irect 7irector or,, )ealth )ealth &ervice &ervicess should should prepare such a penal for all Tehsils Tehsils and 7istricts 7istricts as well. >? Copies of all the documents including the memo of arrest, referred to above, should be sent to the illa:a 5agistrate for his record. >@ >@? The arres rresttee may be perm permit itte ted d to meet eet his his lawye awyerr duri during ng interrogation, though not throughout the interrogation. >? ! police control room should be provided at all district and state head:uarters, where information regarding the arrest and the place of custody custody of the arrestee shall be communicat communicated ed by the officer causing the arrest, within hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. Bailure to comply with the re:uirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render his liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any )igh Court of the country, having territorial jurisdiction over the matter. These re:uirements were developed in the light of H ,e;ort of a ,oya %o!!ission on %ri!ina Pro-ed"re * >Command- 6apers @ of ?
by &ir Cyril 6hilips Committee and the 1rd ,e;ort of Nationa Poi-e %o!!ission.
5ore 5oreov over er in this this case case it was was also also held held that that mone moneta tary ry or pecu pecuni niar ary y compensation is an appropriate and indeed an effective and sometimes perhaps the only suitable remedy for redressal of the established infringement of the fundamental right to life of a citi"en by the public servants and the &tate is vicariously liable for their acts. The claim of the
citi"en is based on the principle of strict liability to which the defence of sover soverei eign gn immu immuni nity ty is nor nor avai availa labl blee and the the citi citi"e "en n must must revi revive ve the the amount of compensation compensation from the &tate, which shall have the right to be indemnified by the wrong doer. n the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element and also on particular facts of the case. The guidelines are basically supplementing constitutional and other statut statutory ory provisi provisions ons,, aiming aiming at the protec protectio tion n of the arreste arrested d and the detained. ! major flaw in this judgment is that, it would have been better on the part of the Court to analyse why the existing statutory provisions are inade:uate to tackle this issue and suggest measures to strengthen such provisions rather laying new guidelines which could not be fitted exclusively into any of the already existing statutes. The Case Case howev however er sett settle led d the the posi positi tion on betw betwee een n awar awardi ding ng mone moneta tary ry compensatory and the application of the concept of strict liability on the tortuous act of the &tate. These guidelines are well celebrated in any matter of custodial jurisprudence and helped in reducing although not eliminating this menace of custodial violence.
