Author: Rushika Rabha
Campus Law Centre, Delhi University
Custodial killings are a fatal symptom of a police system that has become corrupt with power with no accountability. The Constitution of India, the Criminal Code of Procedure Act, and certain case precedents provide an arrestee certain safeguards to protect his/her right to life while in police custody, but policemen constantly transgress such safeguards. Extreme violence and torture while in custody have resulted in many custodial deaths. In an NCRB report titled “Crime in India 2017” a total of 100 people died in police custody in 2017, the most common reasons stated were suicide and illness. While the police must register a FIR in a case of custodial death, it rarely leads to convictions. Since 2005 it was found that while in about 266 cases FIRs were registered, not one person has been convicted to date. Additionally, while it is mandatory according to section 176 (1A) of the Code of Criminal Procedure for custodial deaths to be investigated by a Judicial Magistrate, NCRB’s 2018 data shows that out of 70 cases of custodial deaths only 28 of them had been investigated. Custodial death after incarceration is even higher. There are several reasons why custodial deaths are a regular phenomenon of India such as work pressure to perform, a sense of punitive justice, and lack of proper training, but the truth remains that custodial deaths are not a sign of a healthy police system.
THE UNFORTUNATE DEATH OF A FATHER AND SON
According to a report by the Indian Express, P Jeyaraj (62) was taken into police custody on the 19th of June after he kept his mobile store open during coronavirus lockdown. His son Bennix (32) followed his father to the station. A senior police officer at the station said that when Bennix tried to stop the police officer from physically harassing his father, the police team trashed him too. There were 13 police officers present at that time in the station. When their family met them at the station the next day, both son and father both were badly wounded with blood on their pants. They were taken to the hospital but due to several injuries and excessive bleedings both of them sadly passed away. Their brutal deaths caused a public outcry. They had died because of barbaric violence they had faced at the hands of the police just because they kept their store open when the lockdown had commenced. Such crimes have largely gone unpunished in this country. While the Judicial Magistrate has investigated this case and Criminal Investigation Department has arrested five policemen on charges of murder, it remains uncertain whether it will lead to conviction seeing the abysmal rate of convictions in such cases.
WHAT IS THE PROCEDURE OF INVESTIGATING A CUSTODIAL DEATH?
“Custodial death is perhaps one of the worst crimes in a civilized society governed by the Rule of Law.... The rights inherent in Articles 21 and 22(1) of the Constitution required to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman, or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation, or otherwise. If the functionaries of the Government become lawbreakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchism. No civilized nation can permit that to happen.”- D.K Basu v. State of West Bengal (1997) 1 SCC 416
D.K Basu's case laid down several guidelines that must be followed at the time of Arrest. Some of these guidelines are as follows: the arrest memo must contain all details regarding time and place of arrest, the location of arrest must be intimidated to one’s family member or friend, medical examination must be conducted of the arrestee periodically and prisons must have CCTV. The breach of the guidelines would lead to departmental actions and contempt in addition to constitutional and statutory safeguards.
According to the judgment in Lalita Kumari v. Government of U.P (2014) 2 SCC 1, it is mandatory under Section 154 of the Code of Criminal Procedure registering an FIR is mandatory when the information discloses the commission of a cognizable offense. In such circumstances, a preliminary inquiry is not permissible. A police officer cannot avoid his duty to register an FIR when a cognizable offense has been disclosed.
Section 176 (1A) of the Code of Criminal Procedure, which was inserted after the 2005 Amendment, if a person dies or disappears, or a woman alleges rape while they are in police custody or any other custody authorized by the Court or Magistrate, the Judicial Magistrate or the Metropolitan Magistrate has to hold an inquiry. Furthermore, Section 176 (5) provides that within twenty-four hours of the death of a person the Judicial Magistrate or the Metropolitan Magistrate has to forward the body to the nearest civil servant or a qualified medical person appointed by the state government. If this provision has not been followed through, the reasons for not being able to conduct an examination have to be recorded in writing.
● Methods of interrogation cannot violate a person’s right to life, liberty, and dignity. Torture and degrading treatment are prohibited.
● The magisterial inquiry must be conducted at the earliest without undue delay.
● The magisterial inquiry in cases of custodial death must record the following details- circumstances of death, the manner & sequence of incidents leading to death, cause of death, any person found responsible for the death, or suspicion of foul play, the act of commission/ omission on the part of the public servant that contributed to the death and adequacy of medical treatment provided to the deceased.
● The Magistrate should examine family members or relatives of the deceased, eyewitnesses, doctors who conducted the post mortem/provided treatment, concerned police officers, and other such relevant persons.
THE MAGISTRATE’S REPORT ON THE TUTICORIN CUSTODIAL DEATH
In the Magistrate’s report to the Madras High Court, it was revealed that the behavior of the policemen towards the magistrate was unwelcoming and callous. A female cop who was an eyewitness in the case was afraid of disclosing the details of the incident. She asked that her identity not be revealed. The magistrate had to order two court employees to be stationed outside the room to protect her. She revealed that the father and son were beaten with lathis all night. The policemen were adamant about not cooperating when asked to produce crucial evidence. One cop jumped over the compound wall when he was asked to produce his lathi for inspection. CCTV from the station was also missing. Furthermore, the police tried to intimidate the witnesses.
Consequently, the case was transferred to the DSO, CB-CID, and later it was transferred to the CBI by the Court.
WHY ARE CONVICTIONS IN CASES OF CUSTODIAL DEATH SO LOW?
In State of Madhya Pradesh V. Shyamsunder Trivedi And Ors(1995 AIR SCW 2793), the Court talks about the “ties of brotherhood” among police personnel due to which they choose to remain silent on custodial violence. Their brotherhood bounds them to save their colleagues.
The brotherhood that exists within the police system coupled with the abuse of power has shielded policemen from being convicted of custodial killings. While the investigation of custodial killings, policemen would seldom want to testify against other policemen who have been accused of custodial death to save their colleagues. Moreover, they have been also known to intimidate witnesses or bribe them. Witnesses often turn hostile during the trial. Families especially from underprivileged backgrounds have faced harassment and intimidation from the police.
A compromised investigation with a lack of proper forensic examinations and evidence ultimately leads to no convictions against the accused officers. As mentioned above despite the heavy public outcry and calls of justice from the public the police officers were bold enough to treat the Judicial Magistrate in the Tuticorin case with disrespect. They did not shy away while trying to hide or destroy the evidence of the case.
In theory, the Indian Constitution and Case laws provide an efficient framework for preventing as well as investigating custodial deaths. However, in practicality, even a robust system is not able to stop the police officers from flouting the guidelines to be followed while arresting or conducting interrogations. The use of torture is not permitted, but still, it has continued to be used throughout the country. Brotherhood, corruption, and sheer lack of accountability has made our police system a hotbed for misuse of power. The family members of the victims of custodial deaths are still fighting to get justice. The Tuticorin deaths are just one of the many cases that have been highlighted due to protests from the public. If such unfortunate deaths are to be stopped the laws that are in place need to be strictly enforced every time a case of custodial killing comes to light. Holding a position of authority should not make police officers immune from the laws of the land, the laws should apply to every citizen of this country equally.
 https://cjp.org.in/ncrb-reports-show-statistics-on-how-many-breathe-their-last-in-custody/  https://thewire.in/rights/custodial-death-judicial-inquiry-crpc  https://www.thequint.com/news/india/jeyaraj-beniks-report-kovilpatti-magistrate-high-court-death-tamil-nadu-thoothukudi  https://www.hrw.org/report/2016/12/19/bound-brotherhood/indias-failure-end-killings-police-custody