Custodial Death

For India like country the custodial deaths or custodial torture is not new concept it has long history but basically form British period is highly increased till today we are trying to curb such social evil form our society. After independence Indian government made major changes in law but did not made as effective change as to curb the custodial violence form Indian society.

Section 76 of Cr.P.C, Sections 25 & 26 of the Indian Evidence Act and Section 29 of the Police Act, 1861 The Sections 330, 331 & 348 of IPC are those section makes the control torture of the policeman, but these laws are less sufficient to control such torture or violence. The advent of custodial death and torture has reach its highest level as reported by national campaign against torture stating that more than 1700 deaths.

Torture has not been defined under constitution or other laws. The word custody indicates guardianship and protective care. Even when it is indicates arrest. it should not carry any sinister symptoms of violence during the custody. No civilized law assumes the existence of the custodial cruelty.

The custodial death is very worst cruel form of the abuse. mostly it happen where police officer uses unnecessary force, ultra virus of their powers and torture convicts beyond the limits to take the life of convicted person. In Custodial Death is that concept where any arrested person died in police custody due to the torture done by any police or officer in charge of such custody, the custody may be police custody or magistrate custody. As per the present legislation in India the custodial torture is the grave result of death, rape and physical torture. The National Human Rights Commission has issued fresh guidelines to all State Governments.

The Commission had issued general instructions in 1993 that within 24 hours of occurrence of any custodial death, the Commission must be given intimation about it. These intimations were to be followed with Post-mortem Reports, Magisterial Inquest Reports/Videography Reports of the postmortem etc

It is mentioned in exception of section 300 of Indian penal code that if a public servant exceeds the right of using force and causes death of any person he is liable for an offence of culpable homicide not amounting to murder. Moreover it is clearly mentioned in section 330 of Indian Penal Code that if any public servant causes injury to any person to extort confession he will be liable for punishment with imprisonment upto seven years. The law of the country does not permit the police personnel to use force illegally.

Supreme Court Guide lines in landmark case as under Joginder Kumar v. State Of U.P and Others 1994 AIR 1349: 1994 SCC (4) 260 Hon'ble Supreme Court provides regarding Custodial Torture. The police officer shall inform the arrested person when he is brought to the police station of this right. An entry shall be required to be made in the diary as to who was informed of the arrest.

It was further directed that, it shall be the duty of the Magistrate, before whom the arrested person is produced, to satisfy himself that these requirements have been complied with. Munshi Singh Gautam v State of Madhya Pradesh, Appeal (Crl.) 919 of 1999. The Supreme Court stated that the de humanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of the rule of law and administration of the criminal justice system.

The very famous case D.K. Basu Vs State of West Bengal (1997 (1) SCC 416) Hon'ble Supreme Court issued a list of 11 guidelines Details of all personnel handling the interrogations of the arrested person must be recorded in a register. A memorandum of arrest at the time of the arrest should be prepare. It must also be signed by the detainee and must contain the time and date of the arrest. Police must notify a detainee's time, place of detention, and place of custody. Police of the affected area telegraphically within the period of 8 to 12 hours after the arrest. An entry must be made in the Case Diary at the place of detention.

The Inspection Memo must be signed by both the detainee and the arresting police officer and a copy must be provided to the detainee. The detainee must undergo a medical examination by a trained physician every 48 hours while in custody. Copies of all documents, including the arrest memo, must be sent to the Magistrate for registration.

Information about the arrest and the place of custody of the arrested, within 12 hours after the arrest and in the Police Control Room Board, must be displayed on a visible notice board. As well as Article 3 to 11(A) of Universal declaration of human rights (UDHR) states that No one should be subjected to inhuman or cruelty. All are entitled to equal protection of law.

Everyone has an right to effective remedy by a competent nationals tribunals. No one is subjected to arbitary arrest. All are entitled to fair and public hearing by an independent tribunal. Anyone charged with penal offence has right to be proven guilty according to law in public trail in national and intenational law at time when it was committed . Every accused has a right to be protected against ex-post facto laws.

In Indian various legislation various international machinery and our Supreme court provided many guidelines and stringent legislation but still in India such evil practices are not curb. Coming to the judicial perspective the right of life and personal liberty mentioned under article 21 of indian constitution incorporates all the basic conditions for life with dignity and liberty. such an approach allows to come down heavily on the system of administration of criminal justice. particularly speaking on custodial justice and law enforcement.

The latin maxims Salus Populi Suprema Lex Esto i.e the safety of people is supreme law. Indian police system already known as corrupt police system due to many reasons but on other side police atrocities, use of unnecessary power is the common but death, rape and torture by police custody is biggest blot overall police system.

In India reasons behind the Custodial death are no proper search while accused put behind bars and he committed suicide by cutting nerves, by hanging by poisoning or by burning also, police used force or third degree of torture for interrogation and to get the information from accused. No appropriated knowledge and preparation about questioning, harassed by personal bias, political pressure over police against accused, lack of supervision by senior police officer, no medical aid to accused, traditional habits of police to betting accused, no respect of law and human rights.

Conclusion:
The judges and prosecutors have responsibility to ensure that the standards to protect people against torture within the framework of their own legal system. Despite we have many provisions in our laws. custodial violence continues to exist. Indian criminal justice system should be based on human rights. particularly in rights of victims or accused.

Any reform of criminal justice must be taken into account and seek to eradicate the rootcause of its malfunctioning. It is the duty of prison administration to provide proper facilities of medical infrastructure, food, security and santization to the prisoners , and also to monitory body to not only review but also keep an eye on other activities happening in the prison.