CUSTODIAL VIOLENCE AND THE LEGISLATION

The legal framework in India both constitutional and statutory contains provisions relating to
safeguards arrest, detention, custodial torture and other crimes in custody. The substantive
law (Indian Penal Code, 1861) provides punishment of a person causing injury, torture or
death on the body of a person in custody. The procedural law (Criminal Procedural Code,
1973 and Indian Evidence Act, 1872) contains several provisions safeguarding the legal
rights of a person in custody. The Constitutional and the relevant statutory provisions on the
subject have been supplemented by the significant judicial pronouncements. In addition, the
Protection of Human Right Act, 1993 provides institutions of the National and State Human
Rights Commissions as well as Human Rights Courts for better protection of human rights of
a person in custody. India has ratified, acceded and singed the International Declarations,
Covenants, Conventions and treaties such as Universal Declaration of Human Rights
(UDHR), International Covenant on Civil and Political Rights ( ICCPR), International
Covenant on Economic, Social and Cultural Right(ICESCR), International Convention on the
Elimination of All forms of Racial Discrimination( ICERD), Convention on the Elimination
of All Forms of Discrimination against Women( CEDAW), Convention on the Right of the
Child(CRC), Convention against Torture and Other Cruel, inhuman or Degrading Treatment
and Punishment(CAT), and the International Convention on the protection of the Rights of
All persons against Enforced Disappearance ( CPAED). This apart, the UN Declaration on
Basic Principles of Justice for Victims of Crime and abuse of Power is relevant.

Custodial Violence and Indian Constitution

Article 21 of the Constitution of India provides that no person shall be deprived of his life or
personal liberty except according to procedure established by law. Right to life is a
fundamental right. Right to life does not mean just bare existence it means life full of dignity
necessary for human existence in a society, personal liberty is taken care of by Article 22
which provides that the arrested person should be informed about the grounds of his arrest
and should be produced within 24 hours of his arrest before magistrate. “Liberty is the most
cherished possession of man.”

The protection of life and liberty and protection from or against arrest of a citizen are
contained in our constitution. The protection of life and liberty of a citizen includes the
person so arrested, as the person so arrested is also a citizen of India and he is protected by
Article 21 of the Indian constitution and, as much if at all his life and liberty is to be
curtailed, it must be according to Article 21 of the Indian constitution which says that no
person shall be deprived of his life or personal liberty except according to procedure
established by law‘. The expression personal liberty is not limited to bodily restraint or to
confinement to prison only as has been illustrated by Hon‘ble Supreme Court in Kharak
Singh V. State of U.P.( AIR 1963 SC)

The Constitution in its part III deals with Fundamental Rights. The prohibitions imposed by
Article 20, 21 and 22 of the Constitution are directly relevant to the criminal process. Article
20 (1) prohibits retrospective operation of penal legislation. Article 20(2) guards against
double jeopardy for the same offence. Article 20(3) provides that no persons accused of any
offence shall be compelled to be a witness against himself. Of course, constitution article
protects against testimonial compulsion on the premise that such compulsion may act as a
subtle from of coercion on the accused. Article 21 of the Constitution provides that no person
shall be deprived of life or personal liberty except according to procedure established by law.

The expression ―Life and personal liberty occurring in the Article has been interpreted to
include Constitutional guarantee against torture, assault or injury against a person arrest and
custody. The following are the illustrative decisions, in Dastagir v. State of Madras(AIR
1960 SC), it was held that Punishment which has an element of torture is unconstitutional.

In case of Inderjeet v. State of Uttar Pradesh, the Apex Court hold the view that prison
restrictions amounting to torture, pressure or infliction and going beyond what the court
authorities, are unconstitutional further it extended that an under-trial or convicted prisoner
cannot be subjected to physical or mental restraint, which is not warranted by the punishment
awarded by the Court, or which amount to human degradation (Sheela Barse v. State of
Maharashatra(AIR 1983 SC) Article 22(1) and 22(2) of the Constitution are also relevant for
the present purpose because one of their objects is to ensure that certain checks exist in the
law to prevent abuse of power of arrest and detention. Article 22(1) provides that no person
who is arrested shall be detained in custody without being informed as soon as may be, of the
ground for such arrest ,nor shall he be, of the ground s for such arrest, nor shall be de denied
the right to consult and to be defended by legal practitioner of the choice. Article 22(2)
provides that every person who is arrested and detained in custody shall be produced before
the nearest Magistrate within a period of 24 hours of such arrest, excluding the time
necessary for the journey from the place of arrest to court of the Magistrate and no such
person shall be detained in custody beyond the said period without the authority of a
Magistrate.

The “police” figure as Entry 2 in State List in the Seventh Schedule of the Constitution,
thereby making State Government primarily responsible for maintaining public order. In
variably, police, which is a part of the civil administration, is at the forefront in maintaining
law and order under the framework of constitutional governance based on principles of
―Sovereign Socialist Secular Democratic Republic to secure fundamental right of its
citizens. In consonance with the idea of democratic policing, a Code of Conduct for the
Police in India was adopted at the Conference of Inspectors General of Police in 1960 and
circulated to all the State Governments.

Provisions in Criminal Law

Consistent with the Constitutional guarantee, the statutory provisions are contained in Indian
Penal Code, 1860, Criminal Procedure Code, 1973 and Indian Evidence Act, 1872 for
protection of a person arrested in connection with the commission of an offence as well as
prevention of custodial commission of crimes in police custody. Punitive Provisions are
contained in the Indian Penal Code which seeks to prevent violation of right of life and
personal liberty of a person in custody. The definition in section 44 of CrPC which defines
the expression “injury” as covering harm to body, mind and reputation or property. Section
220 of CrPC provides for punishment to an officer or authority that detains or keeps a person
in confinement with the corrupt or a malicious motive, Section 330 and 331 of CrPC provide
for punishment of those who inflict injury or grievous hurt on a person to extort confession or
information in regard to commission of an offence Section 330 therefore directly makes the
torture punishable under the Indian Penal Code,1860 its Sections 330 and 331 read : Section
330 says, “whoever voluntarily causes hurt for the purpose of extorting from the sufferer, or
any person interested in the sufferer, any confession or any information which may lead to
the detection of an offence or misconduct, or for the purpose of constraining the sufferer or
any person interested in the sufferer to restore or to cause the restoration of any property or
valuable security or to satisfy any claim or demand, or to give information which may lead to
the restoration of any property or valuable security, shall be punished with imprisonment of
either description for a term which may extend to seven years , and shall also be liable to
fine. According to Section 331, “whoever voluntarily causes grievous hurt for the purpose of
extorting from the sufferer, or any person interested in the sufferer, any confession or any
information which may lead to the detection of an offence or misconduct, or for the purpose
of constraining the sufferer or any person interested in the sufferer to restore or to cause the
restoration of any property or valuable security or to satisfy any claim or demand, or to give
information which may lead to the restoration of any property or valuable security, shall be
punished with imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine.”

Sections 340 to 348 of the Indian Penal Code constitute a group of sections dealing with
wrongful restraint, and wrongful confinement and their aggravations. Of course, they
envisage that the confinement itself is illegal “an ingredient prominently brought out by the
adjective “wrongful”. Whereas section 348 which provides for punishment to a person who
wrongfully confines any person for extorting any confession etc. The section also punishes
extortion committed to extract information leading to the detection of offence or misconduct.
The relevance of the Code of Criminal Procedure, 1973, various contain provisions intended
to operate as a safeguard against custodial offences ranged from arbitrary arrest detention in
custody to compensation to the victims of custodial abuses. Section 50 of CrPC talks about
the ground of the arrest and right to bail. This section has been regarded as mandatory,
particularly in the light to constitutional guarantee, so that non-compliance with the section
renders the arrest and detention illegal Ashen v. The State(1987). The arrested person has
right to medical examination if he or she a complaint of torture, maltreatment under section
54, Section 56, 57 and 58 of CrPC related with the action after arrest is made. Section 56
provides that a police officer making an arrest without warrant shall, without unnecessary
delay and subject to provisions as to bail, send the person arrested before Magistrate having
jurisdiction in the case or before the officer in charge of a police station. By section 57, no
police officer shall detain in custody a person arrested without warrant for longer period than
under all the circumstances of the case is reasonable and such period shall not, in the absence
of a special order of a Magistrate under section 167, exceed 24 hours exclusive of the time
necessary for the journey from a place of arrest to the court of the Magistrate. Provisions of
section 57 are mandatory. Section 58 provides that officers in charge of police stations shall
report to the District Magistrate or Sub Divisional Magistrate about cases of all persons
arrested without warrant, within the limits of the respective stations, whether such persons
have been admitted to bail or otherwise. Where the arrest of a person under the Code of
Criminal Procedure, 1973 is under a warrant, section 70-81 of the Code become applicable,
of which sections 75 and 76 are relevant for the present purpose. Section 75 deals with
notification of substance of warrant and Section 76 provides person arrested to be brought
before Court without delay not exceeding 24 hours exclusive of the time necessary for the
journey from the place of arrest to the nearest Magistrate Court.

An important provision in the area of police custody is contained in section 160(1) of the
Code regarding power of attendance of witnesses. This section of particular importance, in
view of the express prohibition, contained in the proviso, against summoning of women of
any age, males under fifteen years at the place other than their place of residence. The
legislative seems to have taken note of the possibility of abuse of authority if the section is
not complied with. Further taking note of the fact that a person in custody may be subjected
to subtle influence to make a confession, section 163(1) of the Code expressly provides
prohibition of inducement of threat or promise. In case when any person dies while in
custody for the police, the law requires a mandatory enquiry by the Magistrate into the cause
of death (Section 176 of Code of Criminal Proceedings 1973). Indian Evidence Act, 1872
elaborated that wherein confessions made to Police Officers inadmissible in evidence.

Section 25 says: “No confession made to police officer, shall be proved as against a person
accused of any offence”.

Recent Legal Development

In recent years Criminal Law ( substantive and procedural law) have been amended deals
with prescribes the duties of the police in arresting offenders, investigation officers and also
contains provisions for their prevention of custodial abuses and punitive provisions to ends of
justice. Rapes in police custody are normally seen as a stigma on the law enforcing agency by
the citizens. Police which is primarily agency for ensuring safety of women, children who
were downtrodden is not forgiven by the society if they themselves get involved in rape cases
in police custody.

For custodial rape Indian Penal Code amended section 376 IPC under Criminal Law
(Amendment) Act, 2013, The other relevant provision is that the insertion of a new Section in
Indian Evidence Act, 1872 (Section 114A). This Section lays down that in a prosecution for
rape under sub-Section (2) of Section. 376 of the Indian Penal Code, where sexual intercourse
by the accused is proved and the question is whether it was without the consent of the women
alleged to have been raped and she states in her evidence before the Court that she did not
consent, the Court shall presume that she did not consent.
When any person dies while in custody of the police, the law requires a mandatory enquiry
by the Magistrate into the cause of death under section 176 of Code of Criminal Procedure
1973. The recent amendment in procedural law through Code of Criminal Procedure
(Amendment) Act, 2005 which amended section-176 of Cr.P.C, 1973 and inserted in its sub-
section (1), the words ― where any person dies while in the custody of the police replaced
with a new sub-section, ―(1A) where (a) any person dies or disappears, or (b) rape is alleged
to have been committed on any women while such person or women is in the custody of
police or in any other custody authorized by the Magistrate or the Court, under this Code in
addition to the inquiry or investigation held by the police, an inquiry shall be held by the
Judicial Magistrate or the Metropolitan Magistrate, as case may be, within whose local
jurisdiction the offence has been committed.”

Besides above mentioned developments it is noteworthy to mention here that a compressive

Bill has drafted and introduced in the fourteenth Lok Sabha (Lower House of Parliament) by
Shri Mohan Singh, Member of Parliament. The Custodial Crimes (Prevention, Protection
And Compensation) Bill -2006 (Lok Sabha Bill No. 63 Of 2006, 26th July, 2006) seeks to
provide prevention and protection against custodial crimes, for compensation in cases of
custodial offences, for appointment of vigilance Commissioner and District Vigilance
Commissioners for Custodial offences. However, the Bill could not be passed by the
Parliament. The Code of Criminal Procedure (Amendment), Act, 2008 was passed by
Parliament and which provides custodial safeguards for arrestee persons in police custody.
The salient features of the Act are the followings:

(a) Curbing the power of arrest

(b) Protection of women in custody
(c) Victims and Witness Protection
 CUSTODIAL DEATH

Custodial death means deaths under police custody or jail. Or holding by the police; "the
suspect is in custody and thereby causing death". The custodial deaths are the matter of grave
concern and are drawing attention of Government, Legislators and the Courts, in fact to all
the sections of the civilized society. A death in police custody is not only a matter of shame
to our social fibre but it also raises our eyebrows with deep anguish when one‘s life is taken
away by those who are the protectors and saviours from any violence or onslaught from the
criminals. Order in a society is through obedience of law. If laws are slaughtered, thrown in
the garbage by such forces that are empowered to bring to book any of its violators, there
cannot be more heinous crime than this. Despite the worldwide condemnation of this
inhuman crime, instances of police atrocities and police excesses have become a thing of
daily occurrence. The weaker sections of our society are most vulnerable, since they do not
have the means to fight for their rights. In fact, no violation of any other human right has
been the subject of so many declarations and conventions, as the problem of custodial
violence has been.

In regards to criminal law, custody refers to the confinement, detention or imprisonment of a

person (as in "she's 'in custody'"). From R v Van Wyk(1999),"An accused in the custody of
the state is not only physically restrained but also, by virtue of restriction of liberty, has a
diminished capacity to withstand the influences of others.... Custody imports a relationship of
dependency - the prisoner cannot walk away - the prisoner relies upon his or her jailers for ...
the basic necessities of life...."

A seizure or forcible restraint; an exercise of the power to deprive a person of his or her
personal liberty; the taking or keeping of a person in custody by legal authority; especially in
response to a criminal charge.

The purpose of an arrest is to bring the arrestee before a court or otherwise secure the
administration of the law. An arrest serves the function of notifying the community that an
individual has been accused of a crime and also may admonish and deter the arrested
individual from committing other crimes. Arrests can be made on both criminal charges and
civil charges, although civil arrest is a drastic measure that is not looked upon with favour by
the courts.