Custodial Death

Custodial death is one of the most heinous crimes in a civilized society regulated by the Rule
of Law. Sometimes, custodial death happens due to not providing proper care at a proper
time, due to complications of physical torture by police and some deaths remain suspicious.
Custodial death in terms of Human Rights is a wretched offense. Custodial violence is the
most prominent factor responsible for deaths in prisons and lock-ups. The incident of
custodial death in the world’s greatest democracy has risen. Our Constitution has set out
fundamental rights to guarantee certain basic rights and liberties to the citizens. The toll of
deaths in police custody is on the rise in the past decade. Many deaths have happened while
in custody but no attention has been paid so far. The National Human Rights Commission has
proposed that in custodial death cases the police officer in charge must be held liable and not
the state. In India, police lock-ups are managed by the police, and such incidents are possible
only by their actions. Thus, custodial death is an important issue for a country like India.

Custodial Death

The death of a person while in the custody of the police or judiciary will amount to Custodial
Death. Custodial Death can happen due to Negligence by the concerned authorities in any
form of torture or cruel, inhuman, or degrading treatment by the police officers whether it
occurs due to investigation or interrogation, unlawful detention of a person more than a
stipulated time, and so on. Prisoners are entitled to fundamental rights under the Indian
Constitution while they are in custody. They are not deprived of basic human rights except
those which are curbed by the court. Custodial death generally refers to death either in police
custody or judicial custody.

Police Custody:
A police officer arrests the accused by following the receipt of information or compliant or
report by police about crime and prevent him from committing further offenses and brings
him to the police station is known as the police custody. In this, the accused is kept in the
lock-up.

Judicial Custody:
When an accused is kept in jail by the order of the concerned magistrate, then it is said to be
under Judicial Custody. When an accused is presented before a magistrate, he can either be
sent to jail or kept under police custody by the magistrate.
Offenses Committed by Police Misusing the Custody:

Police are misusing the Custody and causing torture to the victims in the custody. This
generally means the action or practice of inflicting severe pain on someone as a punishment
to force someone to make him give some information. Due to this, the victims get immense
pain and suffering. It deprives victims of life’s enjoyment and also compels them to commit
suicide.

Rape:

Rape is one of the prevalent forms of custodial torture. The Mathura rape case where
Mathura, a kidnapped minor was raped by three policemen in the lockup is an example of
such custodial torture.

Harassment:

In Nilabeti Behara v. the State of Orissa, the victim had died due to the harassment and
beatings by the police. Such actions are prevalent among the police and it leads to many
sufferings to the victims.

Illegal Detention:

In Rudal Shah v. the State of Bihar, the accused was kept in jail for 14 years, after his
acquittal by the Sessions Court. Such action leads to immense pain and suffering.

Statutory Provisions:
The Constitution of India, 1950
Article 21:
Article 21 provides the citizens of India with the right to life and personal liberty. In the Case of D.K.
Basu v. State of West Bengal, The Hon’ble Supreme Court held that the rights guaranteed under
Article 21 of the Constitution could not be denied to convicts, under-trials, and other prisoners in
custody, except according to the procedure established by law. The Supreme Court in this case laid
down certain guidelines to be followed by the Centre and State investigating and security agencies in
all cases of arrest and detention. Hence, these guidelines are popularly known as “D.K. Basu
guidelines” and are as follows;

 The police personnel carrying out the arrest and handling the interrogation of the
arrestee should bear clear identification and name tags with their designation.
  The police officer carrying out the arrest must make a memo of arrest at the time of
the arrest.
 A friend or relative or any other person known to the arrestee shall be informed about
the arrest as early as possible.
 If the next friend or relative of the arrestee lives outside the district or town, they must
be informed through the ‘legal aid organization’ in the district and the police station
of the area concerned telegraphically after the arrest within a period of 8 to 12 hours.
 The arrested person must be instructed about the right to have informed someone
about his arrest.
 An entry should be made in the diary regarding the arrested person.
 The arrestee should be examined at the time of the arrest.
 The arrested person should be subjected to medical examination within 48 hours
during his detention.
 Copies of all documents including the memo of arrest should be sent to the concerned
magistrate for his record.
 The arrestee should be allowed to meet his lawyer during interrogation.
 A police control room should be set up in all district and state headquarters and
information about the arrestee has to be communicated within 12 hours of effecting
the arrest to the police control room.

There are certain rights for prisoners conferred in Article 21. They are:

 Right to bail.
 Right to free legal aid.
 Right against Solitary Confinement.
 Right against Handcuffing.
 Right against inhuman treatment.
 Right against Illegal Detention.
 Right to a speedy and fair trial.
 Right to meet friends and consult a lawyer.

The Code of Criminal Procedure, 1973

Section 49 provides that the police are not permitted to use more restraint than is necessary to
prevent the escape of the person.
Section 50 lays down that every police officer arresting any person without a warrant to
communicate to him the full particulars of the offense for which he is arrested and the
grounds of such arrest. Further, the police officer is required to inform the person arrested
that he is entitled to be released on bail and he may arrange for sureties in the event of his
arrest for a non-bailable offense.

Section 176 requires the Magistrate to hold an inquiry into the cause of death whenever a
person dies in custody of the police.

There are some provisions like Section 53, 54, 57, and 167 which are aimed at providing
procedural safeguards to a person arrested by the police.

The Indian Penal Code, 1860 (IPC)

 A police officer murdering an accused in custody shall be punished for the offense of
murder under Section 302.
 A police officer can be punished for custodial death under ‘culpable homicide not
amounting to murder’ (Section 304). The provisions of ‘causing death by negligence’
under Section 304 can also be attracted if the case falls within its ambit.
 Once the victim has committed suicide and if it is proved that the police officer has
abetted the commission of such suicide, then the police officer will be held liable for
punishment under section 306.

Punishment for custodial violence

 If a police officer voluntarily causes hurt or grievous hurt to extort confession, then
such police officer shall be punished under section 330 of IPC for voluntarily causing
hurt or under Section 331 of IPC for voluntarily causing grievous hurt.
 A police officer can also be punished for wrongful confinement under Section 342 of
IPC.

Compensation to the victim

The court has the power to award monetary compensation in appropriate cases where
there has been a violation of the constitutional rights of the citizens. Thus, the court
can award compensation to the victims of state violence or the family members of the
deceased victim. The Supreme Court directed the Delhi Administration to pay Rs
75,000 as exemplary compensation to the mother of a 9 years old child who died due
to beating by the police officer in Case of Saheli Vs Commissioner of Police.