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CUSTODIAL DEATH- Torture and violence by police in custody have long been a major issue.  Over the years, the number of such incidents has increased in many parts of the world and India.  It is true that the police resort to third-degree methods to obtain confessions and statements from the accused.  Such procedures often result in serious injuries and even death.  It is also true that victims are forced to commit suicide because they cannot bear the torture and humiliation.

 Custodial death –

  Custodial death is the death of a person who was arrested by the police during a pre-trial or after being convicted.  Conservative death can be divided into three types –

  Death in police custody;

  Death in judicial custody;  And

  Death in the custody of army or paramilitary forces.

CUSTODIAL DEATH is widely defined as death that occurs in the case of a person who is under trial or has already been convicted of a crime.  It can be due to natural causes like illness or suicide, fights among the prisoners, etc. but in many cases, the police brutality and torture is the reason behind this death.

  The issue is highly controversial and complex.  Often, victims are tortured before the arrest, that is before they are taken into custody, which helps the police to comfortably claim that these are not incidents of customary violence, and occurred before the arrest of the injured.  Sometimes victims are killed in fake encounters before arrest.  It is also a form of traditional death, which becomes very difficult to prove.  The most worrying aspect is that while all the evidence and records are with the police, outside evidence is rarely available.  This leads to ritual violence and subsequent difficulty in identifying the resulting deaths.

  One of the highest forms of human rights violations is conservative death.  It is a blatant attack on the right to life and liberty guaranteed by the Indian Constitution.  The responsibility to protect the lives of accused and convicted persons rests with the state concerned. Persons convicted or convicted of crimes are entitled to a fair trial, protection, and security in police and judicial lock-ups and rehabilitative homes.  However, law enforcement agencies often fail miserably in fulfilling their constitutional obligations, and even more unfortunate is the fact that after such incidents, every effort is made by the perpetrators to cover up their misdeeds.  The government plays a big role in protecting the accused officials.

  The Indian Constitution and the legal system provide various protections against traditional torture:

  Protection against Conviction or Extended Punishment under the Ex-Post Facto law: Article 20 (1) of the Constitution of India specifies that no person shall be convicted of any offense except in violation of law during the commission of law.  No punishment greater than may be effectively imposed under the law during the commission shall be provided.  The article, therefore, prohibits the enactment of ex-post-facto criminal law and also prohibits the penetration of any punishment imposed under the law effectively during the commission of the crime.

  Right not to testify against himself Article 20 (3) of the Constitution states that no accused person shall be compelled to testify against himself.  This is very important because it fulfills as a protection against fraud and torture.  Interestingly, under Section 179 of the IPC, every person is legally obliged to disclose the truth about any matter to a government employee.  Section 161 of the Criminal Procedure Code, 1973 enables the police to examine the accused during the investigation.  But on the other hand, any pressure, unreasonable, mental or physical, direct or indirect, is still sufficient, if the police request to take information from an accused, it becomes ‘compulsory testimony’, and violates Section 20 (3).  The prohibited sweep of this article works in this manner and serves as protection for the accused.  This issue discussion in the Nandini Satpathi case.

  Section 163 of the Criminal Procedure Code, 1973 prohibits investigating officers from making any provocation, threat, or promise under section 24 of the Indian Evidence Act,  but prohibits any person from making any statement that he wants  To make his free will.  Section 24 of the Indian Evidence Act of 1872 makes all confessions made under persuasion, threat, or promise as unacceptable.  This section gives the accused the right not to give any recognition against his will as it is well understood that if such evidence is made admissible, it will act as a trigger for police torture and use of force to produce evidence against him.

  Section 164 (4) of the Criminal Procedure Code, 1973 provides for the recording and signing of confessions by a magistrate in a proper manner as they have been implemented spontaneously.

  This right against self-incrimination is consistent with Article 14 (3)of the International Covenant on Civil and Political Rights, which guarantees member states that the accused is not compelled to testify or plead guilty.

  Among others, section 348 of the Indian Penal Code, 1860, provides for unjust imprisonment and prohibits such prisons from extorting any recognition or information to identify a crime or abuse.  Such unjust imprisonment is a punishable offense for which imprisonment for three years is also liable to a fine.

  Similarly, sections 25 and 26 Sec of Indian Evidence Act, 1872 have protected the accused in the same line.  Article 25 states that any confession made to a police officer cannot be used to prove any crime against him.  Article 26 Declares all confessions made by a magistrate immediately unless they are made in the immediate presence of a magistrate.  However, Section 27 of the Act provides exceptions to Section 25 except that a statement made in custody may be admissible if it leads to the discovery of some new truth.  In this case, the Supreme Court noted that the defendants may exercise their right to self-accountability under Article 20 of the Constitution if they are compelled to confess under this section.  However, this is a controversial issue and many legal experts have claimed that such protection does not exist in practice, as it is extremely difficult for the defendant to prove that his confession was forcibly obtained.

  Article 21 of the Constitution of India does not explicitly say anything against protectionism, but its position is broad enough.  This right states that no person shall be deprived of life or personal liberty except by the procedure established by law.  The right includes a constitutional guarantee against torture, abuse, or injury, and it serves as a protection against conventional torture and violence.

  Critical analysis of the reasons for the increase in CUSTODIAL DEATH-

  The reasons for the increase in CUSTODIAL DEATH are manifold.  It is the responsibility of the police to look after the health and safety of the detainee in custody. The Human Rights Commission must be notified within 24 hours of the death of a detainee and within 48 hours of an encounter murder.

  According to the National Crime Records Bureau, the number of custodial deaths increased from 2016 to  2017.  The NCRB’s 2018 prison report said a total of 1,639 people died of ‘natural causes, 149 from ‘unnatural causes, and the rest died of ‘unknown causes’ because a few states were not interested in disclosing details.  The report basically divides itself into two sections;  Natural and unnatural deaths However, there is often nothing natural about these deaths and unnatural deaths occur due to the inability of state and judicial facilities.  They fail to provide proper health care and protection to prisoners.  Suicide is one of the leading causes of death in custody.  How many of these were actual suicides and in how many cases victims were forced to commit suicide because of the avoidance of further torture and violence is a matter of discussion.  In India, there are inadequate facilities for psychiatrists in prisons and under-trials and this greatly affects their mental health.  So they must have better access to psychological support and better preventive measures must be implemented.

  Proper protection of detainees should be one of the top concerns of reformers and policymakers.  There are a lot of attacks among the inmates in the prison which often prove to be deadly.  A person under custody loses most of his or her rights, including the right to free movement and the right to choose the treatment they want.  It increases their mental anguish.  It is the responsibility of the state authorities to take care of their physically and mentally handicapped and to respond appropriately to their needs.

  Conservative deaths due to police brutality are probably the most important reason for the increase in numbers.  The police are empowered by the state to enforce law and order and maintain public order.  They don’t have the right take the law in their own hand.  Torturing an accused or detainee is a gross violation of their given powers.  But it is growing year after year.  The recent conservative deaths in Tamil Nadu are not isolated incidents but are the result of systematic stagnation and normalization of the use of unnecessary force in the line of duty.  We live in civil society and many of us are aware of our rights and responsibilities yet horrific events continue to happen.  Section 49 of the CRPC respects the rights list of an arrested person.  There it is clearly stated that the use of the ball when detaining a person should not be more than necessary to prevent them from escaping.  This is strictly followed.

  Finally, it must be said that there are many more cases that are not reported.  Only a few make it to the annual reports, others are buried under the administrative cover.

D.K.  Basu v. State of West Bengal (AIR 1997 SC 610)

  The Apex Court has given a landmark verdict in the growing number of deaths in India.  The executive chairman of legal aid services wrote a letter against the growing number of deaths in custody, and the letter was considered a writ petition by the court considering the gravity of the issue.  In this case, the court observed that there is no effective mechanism proposed by law to deal with conservative death cases in India.[1]

  Under the 113th report, the Law Commission of India has suggested amendments to the Indian Evidence Act, including Section 114-B, which deals with the issue of custodial violence.  The court observed that custody death is a matter of concern and it assumes a more extreme shape as it is committed by the guardians of the citizens.  Thus, it was held by the court that this law is against the industry. This is a clear violation of the fundamental rights and human dignity of the victim.  Sometimes it becomes difficult to prove the guilt of police officers as there is a lack of evidence against them.  No direct evidence was found against these officers so they were acquitted.  The court also observed that the use of third-degree methods by the police is illegal and should not be used to extract information from the accused and held that the glory of the law must prevail.  Thus, the police have the right to investigate the case and interrogate the accused but not to allow the use of third-degree torture to extract information.  The court further observed that the government should accept the recommendations of the Law Commission’s report on the suppression of these crimes against humanity.

By Moumita Muhuri

3rd year of Shyambazar Law College.

[1] Custodial death and anti-torture law-

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