Police cruelty has been seen almost in every country. India is one among those countries with high rate of custodial torture and death. As per the data, everyday an average of five people die in the custody with some of them surrendering to the torture in police or judicial custody. In 2019 the National Human Right Commission recorded around 1723 death cases with a greater number of deaths recorded in judicial custody and the deaths in police custody is mainly the result of torture. This practice of torture is widespread and significant in India since it is not challenged and opposed. In the name of investigation or to obtain confession, the police officers (i.e., civil force) badly tortures the accused person.
In a very recent death of father-son by the police officers in Thootukudi district, Tamil Nadu have witnessed a massive outrage over the custodial torture. In this case an FIR was filed against Jayaraj and his son Bennicks for allegedly Violating the lockdown rules laid by the government. They were sexually assaulted and tortured in the custody leading to their deaths. Through this case we could see the misuse of power by the police officials by performing such dirty task.
What is Torture? It is an action or practice of causing severe pain in order to force them to do or say something. It is to cause great physically or mental pain to someone intentionally.
What is Custodial torture? It is one such torture to a person who is asserted but not proved of any crime, is under the custody of law enforcement officials. It is one of the hateful practices, a method of investigation and detection of a crime, used against the prisoners and under-trails in order to confess to the crime or obtain information about the crime. This torture ignores the human rights and individual personality and reduces his dignity in the society.
KINDS OF TORTURE:
The kinds of torture the civil force uses during interrogation goes beyond our imagination. Police feel that they are more powerful person without any restrictions or limitations set by the law. Thus, they use such kind of tortures which includes the use of 3rd degree method, custodial rape, fake encounters, sexual harassments. It includes acts like slapping, kicking with boots, beating with sticks, pulling hair etc… and also brutal methods like hammering iron nails in the body, applying roller on legs and burning etc… In Bhagalpur Blinding incident which took place in state of Bihar in 1979-80, the police blinded 31 individuals who were under trial or convicted of murder, by pouring acid into their eyes. This was the first case in which the supreme court ordered compensation for violation of basic human rights.
The police staff go to the extent of stabbing people with screwdrivers and giving electric shocks and this is what happened in Pradeep Tomor case where he was brutally tortured by the police and this ultimately resulted in his death. As per the report, people committed with theft are allegedly tortured to death and many dies by suicide as they are unable to bear such torture. Police also follows such practice to obtain money from them or family members. Also, they target poor people from weaker section of the society since police feels that these people cannot go against them.
The known fact is that, the female is nowhere safe in this world. The law, government, civil force, police protection, nothing of these will save a girl from being raped or harassed. The victims in police station are tortured to perform oral sex and are targeted for sexual violence. The Mathura rape case was one such incidents of custodial rape where a young tribal girl was allegedly raped by two policemen. In Maya Tyagi Case, the victim was raped by ten policemen and her husband and two of his friends were shot dead. When a complaint was registered, she was brutally, mercilessly tortured and was charged with false accusations. This is how the police officials took advantage of their powers and position. Later this case was found as torturous incident by the police officials. Many such cases still happen and continues to happen even in future if government won’t take restrict action against it.
A very unfortunate fact is, the people by large actually support this violence as they believe that they are getting swift or quick justice. In the recent rape case in Hyderabad where the accused were encountered, there was wide spread support from public. Vikas Dube case is also regarded as fake encounter by the police officers. In many cases, off the record, the truth is not revealed (kept as secret). So, to cover up the case lot of fake encounter takes place and people not knowing the fact support this, believing to get quick justice. Public actually adds up to the sense of liberty and the belief that the police cannot be taken down or be opposed by the public. A very interesting thing is that the police officials get inspired by movies, films and they try to enact in the same manner and try to adopt such tortures and Encounter is one such practice.
Remedies have been provided against the Custodial Torture and the subsequent deaths in order to provide safeguards to the once affected by this practice.
1.PROTECTION UNDER CONSTITUTION: The Law that form the basis of all the Law is the Constitution of India. Under part 3 of the Constitution, Article 20, Article 21 and Article 22 particularly deals with arrest, custody and confessions.
Article 20 – States that no person accused of any offence shall be compelled to be a witness against himself i.e., No Man is bound to accuse himself. Police Authorities cannot force the prisoners to give testimony that is likely to expose them for criminal consequences.
Article 21 – States that no person shall be deprived of his life or personal liberty except according to the procedure established by law. The word “life” includes right to live with human dignity, right to livelihood, right to free environment etc… and this right to life is the most fundamental of all the rights. Although this Article doesn’t talk about Custodial Torture, but it guarantees certain rights and provides protection against torture, assault and injury. It includes:
- Right to Speedy Trail
- Right against Handcuffing
- Right against Inhumane Treatment
In Babu Singh vs. State of Uttar Pradesh the Supreme Court held that the refusal to grant bail in murder case without proper grounds would amount to denial of personal liberty under this Article.
Article 22 – Deals with the rights against arrest and detention that involves the following provision
- No person shall be arrested or detained in custody without being informed of the grounds of such arrest
- Person who is arrested has to be produced before the nearest Magistrate within 24hours (excluding travel time)
- Person who is arrested shall have the right to be presented by a legal practitioner of his/her choice
Thus, these provisions are made to ensure that a person is not subjected to any ill-treatment or torture.
2.PROTECTION UNDER IPC: The Indian Penal Code also includes particular sections that protects the interest of those under the custody. This includes Section 330, 331, 348 and 376(2) of IPC.
Section 330 – It Criminalizes Custodial Torture. For instance, if a police officer uses force against the accused while in custody in order to confess to the offence then he shall be guilty of this crime. He shall be punished with imprisonment that may extend to seven years and will also be liable to pay fine.
Section 331 – It Criminalizes the grievous hurt caused to the accused for extracting evidence. Since grievous hurt is more severe and serious, the punishment is extended to ten years.
Section 348 – Provides punishment to person who wrongfully confines any person and extorts any confession or information.
Section 376(2) – It deals with aggravated form of rape committed by police officers or public servant or staff of the jail or remand home. In Mathura Rape Case, section 376 of IPC was amended, and section 376(1)(b) penalised Custodial rape committed by the police officers so they won’t take advantage of their authority.
So, all these sections were designed to deter a police officer who uses third degree method of torture to obtain confession from the accused. In D.K.Basu vs. State of West Bengal the Supreme Court gave Guidelines with respect to the rights of the arrested person, stating that the arrestee should be subjected to medical examination every 48hours during his detention by doctor and that the arrestee can be allowed to meet his lawyer during interrogation.
3.PROTECTION UNDER CRPC: The Criminal Procedure Code also provide rights to the person arrested or accused under particular section that includes Section 41, 46, 49, 50(1), 56, 58, 75 and 76 of CrPC.
Section 41 – Provide arrest of any person or accused without any warrant by the police officer. If the person has committed a cognizable offence then without any order from Magistrate or without any warrant he can be arrested.
Section 46 – It talks about how arrest is made. The police officer while arresting the person is bound to touch or confine the body of the person who is supposed to be arrested and there should be no handcuffing of the person unless the Magistrate orders to do so. In case of women, she cannot be arrested after sunset (after 6) and unless there is a female police officer, the male officer cannot make the arrest. When the person to be arrested try or attempt to escape then, the police officer use all means necessary to effect to the arrest.
Section 49 – States that person arrested shall not be subjected to more restraint or control than is necessary to prevent his escape.
Section 50(1) – It provides the right of the person who is arrested. Police officer arresting any person without warrant shall communicate to him full particulars of the grounds for such arrest and also, he can arrange for bail.
Section 56 – States that the person arrested is to be taken to the Magistrate or officer-in charge of police station. If the arrest is without warrant then the person arrested will be taken to the Magistrate with competent jurisdiction without any delay.
Section 58 – It provides that the officers-in charge of police station shall report the cases of all the person arrested without warrant to the District Magistrate.
Section 75 – When the person is being arrested under a warrant, the person who is executing the warrant must inform the person who is being arrested or show the warrant if required. If the warrant is not informed then the arrest would be unlawful.
Section 76 – States that the person arrested need to be bought before the court without any unnecessary delay. He should be produced before 24hours excluding the travel time. The reason is to remove the possibility of the police officials in obtaining confession or compelling the person to give information.
4.INDIAN EVIDENCE ACT: Confession is one of the major factors that determine the case. For this reason, some safeguards have been formulated to determine the accuracy of the confessions made and to protect the rights of the accused and it includes Section 24, 25, 26 and 27 of the Indian Evidence Act (IEA).
Section 24 – It makes the confession irrelevant if the court feels that it is made in forced situations or as the result of threat and inducement. The confession made by the person under threat or promise will be taken as invalid testimony.
Section 25 – It provides that the confession made by the police officer will not be permissible in the court. The malpractice of the police officers for obtaining evidences is put an end by formulating this section.
Section 26 – It provides that the confession made while in custody of the police officer will be held invalid unless made in the immediate presence of the Magistrate. The section involves those situations where confession is made by the accused to someone else other than the police but under the custody of the police.
Section 27 – Tells that any information received by the accused in the custody by the police officer cannot be regarded as a confession but relates to the facts thereby obtained.
Even though Custodial Torture is not prohibited by law in India, the evidences and information which are collected by illegal means, including torture is not accepted in courts.
5.INDIAN POLICE ACT:
Section 7 and 29 – It provides for dismissal, penalty or suspension of police officer who are negligent in discharging their duties and are unfit to perform their task. In many cases the police officers are found to be violating constitutional and statutory safeguards and in this way the sections put a break to the practices.
The Custodial Torture, a Heinous Practice by Police officials happened before and even now is in practice and would continue to happen if no strict, serious action is taken by the Government. People seek protection and justice from state and law. If there is no protection for people’s life then there is nowhere to go to protect their life and this ultimately result in death of a person.
Custody refers to the confined protective area where protection is granted to the accused of any offences but if it goes the other way then, the people’s life would be in danger. Custodial Torture is now an important debated topic since many civil officials or higher authorities are misusing their power, taking advantage of their position or the status in the society. These tortures should be considered as a crime and special laws should be passed for those misusing the authority so that they would come back to there normal life fearing for law. Media, any groups or associations and even the opposition parties should play a vital role in checking over the activities of the police officials and these sources will gain huge public attention. So, in this way we can overcome the problems.
M Spoorthi, 2nd year BALLB, BMS COLLEGE OF LAW