When we hear the word custody, people usually apprehend it with the word
arrest, however, custody means under supervision or care. Thereby, a person
under police custody is also expected to be treated with full dignity. This
raises an end number of questions when we see news regarding custodial deaths,
rapes and disappearance; it is a matter of morals and justice. To talk about the
same, there are laws placed in order to avoid any such circumstances and to
maintain order. Under CrPC, section-176, it clearly states that any such
horrendous crimes shall not take place. This actively demonstrates that any an
accused under the custody of police if found to have an unnatural death,
disappearance or rape, ensures safety and the strict compliance of custodial
deaths by the NHRC takes a high significance on its agenda.
In CrPC, section-176, where later sub-section 1(A) was amended, it states that
where any individual under custody of the police dies, disappears or is
allegedly raped, should be inquired by either the magistrate or the court and
also an investigation by the police should be held. We can see that there are
laws to protect the rights of an individual, however, in light of recent events
where the cases of police brutality and custodial deaths have seemingly
increased, there hasn’t been much information provided for the same and not many
investigations have taken place in time, or have been later handed off to
independent agencies like the CBI or special investigation teams which has made
it difficult to come to a conclusion. This alone disrupts the order in the
society as custodial death is nothing but a crime against law enforcement.
It is worth noting that the act has been a significant initiative to control and
minimise the brutality and crimes. The act has brought many remarkable changes
and positive changes in the conduct of police, despite that, there still many
issues like delayed investigations, weak implementations of police complaint
authority, causes of death due to circumstances/conditions in prison is not
provided. For this, CrPC provides a layer of protection but is unfortunately
camouflaged by the rights given to a policeman to arrest.
Justice is a system of fairness and equality for every citizen of the country
and unless every field in a society is provided with the same, it is justice
denied. Every individual in the country, including criminals, deserves to be
treated with law and order and to face violation of their rights is an offence
just as great as any other crime and needs to be talked about. Misdemeanours
like these are to be addressed so as to maintain the basic equilibrium of the
social atmosphere, therefore, to ensure the same, safety laws were added to
abstain from crimes in custody to take place.
The powers handed to policemen to arrest bestow them with an upper hand in
making unnecessary arrests which can lead to a torturous investigation,
resulting in many cases as deaths. Police brutality in any form is a major issue
and with the help of CrPC this issue was aided, it is a blessing for some and a
blessing in disguise for some.
The research paper is aimed to bring about many issues as follows:
- To understand how the Section-176 amendment of CrPC helps the motive to
curtail police brutality.
- To understand the impact of non-compliance of Section-176(1A)
- How delay in lodging a police FIR or delayed investigation is an issue.
- To understand the weak implementations of Police Complaint Authority
In the article authored by Rohan Deshpande “What can India do to combat police
brutality and bias” states that misconduct of police can be sought before the
High Courts and the Supreme Court, however, it is possible that only cases where
the burden of proof is extremely high might be one of some cases that are dealt
with. The article states that complaints can be filed against the concerned
officers for offences under the Indian Penal Code, 1860, but since the mechanism
for an independent investigation is not provided which most often results in
policemen generally refusing to file first information reports against their
Therefore, the safeguard provided to police personnel under Section 197 of the
Criminal Procedure Code, 1973, is also recurrently exploited, however, authority
can not camouflage the ability to commit crime. With this statement many
conclusions and assumptions can be made, but as reliable as CrPC is, the idea of
it being misused by section-197 or by section-41 is not an unreasonable doubt.
In the article, published by Shreya Tandon, “Problems, perspective, and laws
surrounding custodial deaths, a dire need of anti-torture law”, the author talks
about how Protection Of Human Rights (PHRA), 1993 was an added layer of
protection and promotion of the citizens of the country. However, it was found
that there were cases of procrastination and that there was an undue pause in
submitting such records, which further obstructed the process for cases arising
from custodial deaths.
M.P Nathanael in his article named “Reducing custodial deaths” vocalises his
thoughts on how the weak implementation of the Police Complaint Authority that
were to be established after the historic order of the Supreme Court in 2006,
where a citizen who was a victim of police misdemeanor could lodge a complaint
against the officer involved.
While states like Punjab, Jharkhand, Maharashtra et cetera took the matters
seriously and began the practice of PCA, the rest of the states on the other
hand simply did not take the matter seriously. To sum up everything that has
been stated and to jump to conclusion, until exemplary punishment is not issued,
the police personnel are not likely to take matters like such with much
seriousness. Therefore, if these issues are not dealt with, there cannot be much
done to ameliorate the situation even after a judicial inquiry.
The research on this topic has been achieved by adopting Doctrinal Research
methods. In the present study, primary and secondary sources such as Books,
National and International Law Journals, Case Law, Doctoral thesis and
Dissertations, Reports of Committees and Commissions, Dictionaries, Statutes,
Comprehensive Manual and Newspapers have also been utilised. For collecting
material, the internet was highly resourceful in providing the required
Code Of Criminal Procedure S.176: A Step Towards Justice
When section-176 came into being, it was labelled as ‘one of the most important
things’ executed in the amendment act. In the same, custodial deaths,
disappearance and rapes were brought in light and was given the noteworthiness
these heinous crimes deserve. With this section, the power to hold inquests
falls not only on the Executive Magistrate but also on the Judicial Magistrate
along with a police investigation on the same. Under sub-section 1A, the body of
the raped victim or the deceased is to be sent for examination within 24 hours
of the reporting of the incident, which could help give a better understanding
of what happened, however, if for some reason it is not possible to do so, it
shall be given in writing stating all the reasons and facts. With this
initiative, we can agree that crimes like such are not looked away from. This
uplifts the voice of hundreds of people facing injustice during custody.
Safeguards to those in Custody
It is stated by the Supreme Court that a person in custody is not denied the
basic rights, which empowers the person with a sense of security and safety.
However, if a police officer is found guilty of denying a person under custody
his basic fundamental rights, the victim has the power to take the matters to
the Supreme Court under Article 32.
Failure To Provide A Full Picture
Section 176 being a historic ordinance was nothing but a compilation of
corruption, secrecy and non-compliance. This has created a huge controversy on
the workings of criminal justice. While the custodial deaths have been only
increasing, implementation of PCA is not taken seriously, there is an issue of
non-compliance, and delay in filing complaints; to top it all off, there has
also been a huge shortage of staff. Chairpersons are not elected, as
appointments are not being made. The lack of voice to the issue is so little
that matters are slipping by without catching an eye of the criminal justice
system, which is a huge failure to the constitution. Not having a full picture
is just as similar to neglecting the duties.
NHRC Interpretations- A Dilemma
As stated above, the most important section-176 of the Code of Criminal
Procedure turned out to be in contradiction from the notification by the NHRC on
the clarification on how interpret Section 176(1A). The clarification stated
that not all cases will be handled by the Executive or the Judicial Magistrate
but only the cases where a series of serious questions arise and questions for
the law emerge.
Thereby, an inquest will only be held by the Judicial or Metropolitan Magistrate
will only be done when there is a sense of foul play in the death of a person
under custody or where a serious well-founded allegation is made against an
officer, whereas in the rest of the cases where death is either natural or due
to an illness, it shall be enquired by the Executive Magistrate along with a
police investigation. Since there are alleged “ties of brotherhood” among police
officials, which could delay a fruitful investigation.
Non-Compliance of Section-176
The nature of the provision is in point mandatory, but its compliance is
extremely rare. There have been inquiries only on certain cases while the other
cases have been overlooked, therefore, there is a dire need of strict
implementations to avoid any non-compliance of the above mentioned section. It
has seemed that ever since the section got ordained, it has been ignored and not
Delay- An Issue
In the case of Lalita kumari v. State of UP
, the Supreme Court declared
that it is mandatory to file a FIR, under the section of 154 of the code. Even
in section-176(1A), it is mandatory to file a FIR or approach the Judicial
Magistrate if police personnel deny to file a complaint for every death in
police custody. Due to the delay in filing the complaint, there would be a delay
in investigation. Although, even when the investigation takes place, the
proceedings are tainted by biased and prejudicial oversight.
Weak Implementations of PCA
The Supreme Court in 2006, in the verdict of Prakash Singh v. Union of
India, provided an effective framework for accountability against custodial
deaths and police misconduct. The court directed to establish ‘Police Complaint
Authority (PCA)’ at state levels. However strong the direction might be, on
ground levels it was dismal. The weak implementations of the PCA just looked to
be a non-compliance of the ordinance. Many states failed to pass the legislation
either at state level or at district level, in some cases even both. These
divergences from the legal ordinance is a mere death letter of the law.
Death Due to Illness
The reports that are to be provided in cases of custodial deaths plays a crucial
role, it helps the public and the authorities understand the circumstance of
death. “Death due to illness
” also plays a major role in understanding
the situation of the person in custody. However, the illness which was faced by
the person in custody is not determined and neither is the cause of illness.
While many believe it is natural to die of an illness, it is also possible to
acquire an illness due to harsh treatments in custody. The nature of the reports
is opaque and due to this, the understanding of the crimes is gone unnoticed.
Justice And Morality- A One Way Street
The concept of law is not different from that of morals. Many believe, law is
just a more defined and just system while morals depend from person-to-person.
Being an individual and being correct according to one self, makes a man morally
correct. Law on the other hand focuses on the rights and wrongs from a bigger
perspective, the focus is depended on the society and what should be done in
order to maintain safety and ensure rights from the abuses of organisations,
other people and from the government itself.
When we talk about such heinous crimes like rapes, murders or disappearances, it
stimulates a sense of shock. Society starts questioning if they are de facto
safe or not; and so, laws were passed to ensure the same.
Transgressions like such are not only against laws, but also are in defiance of
morals. To say only the law is disregarded would be an understatement. Morals
are just as much a part of society as laws are and the idea to prevail justice
would be only a fantasy, if the justice received is not morally binding.
The above statement demonstrates that, Cr.P.C in regards to crimes in custody,
is a morally binding and law ensuring act. With the help of the act, many might
get the justice against such horrifying and derogatory crimes.
Free Will Or Compulsion?
From the very beginning of times, torture and violence have been a major trick
to inquire with a person in custody. Studies show, that after a lot of torture,
the person gets weak and accepts his/her wrongdoings or rather confess to
anything. Be that as it may, after the new laws it was rendered ineffective and
purposeless. Yet, nowadays too there are many cases of custodial torture
resulting in deaths, with this it raises a question ‘is the crime committed by
the police officer in free will or by the direction of their superiors?’. With
encounter killings being vague and unclear, it is posed with many queries of
whether superiors were involved.
There is a turning of a blind eye by the judiciary to the claims and evidence of
beatings and torture. This can only be comprehended as an unmentioned consent to
third-degree practice employed by the police. This whole cycle of police
claiming to be fabricating evidence and practicing alleged ‘fake’ encounters
contributes to the judicial crimes and custodial brutality as there is no
strictness and severity to the actions of the police personnel and the crimes go
blind in the eyes of law.
In the case of Jayaraj and Bennix v. State of Tamil Nadu
, there was a
killing of the father-son duo which created a huge controversy. The father, P.
Jayaraj, had been allegedly keeping their phone and related accessory shop open
15 minutes following the covid-19 lockdown, was allegedly insulting and offended
the police personnel to which as a consequence, he was arrested and taken into
Later, when the son, Bennix heard the news and rushed to the police station
along with his friends, he witnessed his father getting beaten up by the police
and decided to intervene and was also taken into custody. Bennix was beaten up
terribly, leaving his black and blue, which was all witnessed by his friends.
The duo was immensely abused and ill-treated, and they were soaked in blood.
There is also an allegation of rape to them, as there was a lot of rectal
bleeding. The Tamil Nadu State Human Rights Commission and the Madurai bench of
the Madras high court took a suo motu acknowledgement of the offence, and
demanded a report from the police officials concerned. The officer against whom
the allegations were made have been suspended and arrested. The above stated
shows that, only with the suo-moto intervention of the government, remedial
actions were taken and the accused were suspended. This shows not only an act of
abuse against the victims involved but also an abuse of power.
In the case of Kartik Mehto v State of Bihar
, the National Human Rights
Commission registered a case against the sub-inspector under section 302 IPC who
detained the victim for no cause and brutally tortured him in custody which led
to his death. When NHRC registered the case, the sub-inspector surrendered to
the Court and was arrested and was dealt in accordance with the law. A
commission was also paid to the wife of the deceased by the State of Bihar. The
final action is yet awaited.
While the workings of the law may be in either black or white, ground reality
workings lie somewhere in the grey area. Justice and morality being a historic
concept requires modifications and changes. Although section-176 of Criminal
Code Procedure is a fair and just act, the reach of it is not till far, and
therefore, to provide justice in a vague system seems a far-fetched dream. No
doubt that there is a lot wrong with the criminal justice system, but there are
many ways by which it can be turned into something much better than the current
To understand the thought-process behind brutality is important, understanding
the implementations of PCA is important but what is most crucial is to
understand why these atrocious crimes happen and what can be done to avoid them.
Better training and understanding of consequences should be given to the police
officials, laws should be made more clear, investigation should not be tampered
with. Although to have a fair and sound criminal justice system is a long way,
small and critical changes would bring about a significant difference.
Written By: Isha Narang