CUSTODIAL VIOLENCE AND CRIMINAL JUSTICE SYSTEM IN

INDIA

INTRODUCTION

Custodial Violence and abuse of police power have emerged as a major issue of Human Rights
concern and one of the root obstacles to the democracy and development of human well-being in
contemporary societies. It is resultant of torture and atrocities committed by police officers
against persons in custody by the use of third degree methods are creating a great challenge
before criminal justice system. Criminal Justice System has been evolved to prevent the crime, to
identify criminals, to collect evidence, to penalize criminals and ultimately to save the society
from crime and criminals. Police is most important constituent of criminal justice system and
have responsibility to save the society and protect societal members. Nowadays many cases are
coming in media and also before courts alleging abuse of power by police and commission of
custodial violence. If police officer, the protector, himself commits crime of custodial violence,
it affects the whole criminal justice system. This situation gives rise in increase of crime rate.
Crimes of custodial violence are committed by police officer against the helpless person in
police custody who should be protected by police officer. Therefore in this era of human right
consciousness custodial violence is considered as most ghastly and heinous offense.

DEFINITION

Custodial violence is very broad term and it includes deaths, rapes, tortures, illegal arrests and
detentions, false implications, disappearances from police custody and other abuse of police
powers. In common word custodial violence refer to torture in police custody.
Supreme court of India in the case of D.K. BASU V. STATE OF WEST BENGAL1 has observed
that “ Custodial violence, including torture and death in lock-ups, strike a blow at the rule of law
which demands that the powers of the executive should not only be derived from law but also
that the same should be limited by law. Custodial violence is a matter of concern. It is
aggravated by the fact that it is committed by persons who are supposed to be the protectors of
the citizen. It is committed under the shield of uniform and authority in the four walls of a police
station or lock-ups, the victim being totally helpless. The protection of an individual from torture
and abuse by the police and other law enforcing officer is a matter of deep concern in a free
society. ”

Convention against toture and other Cruel, In-human or Degrading Treatment or Punishment
1984 define torture as :

“Torture means any act by which severe pain or suffering, whether physical or mental, is
intentionally inflicted on a person for such purposes as obtaining from him or a third person
information or a confession punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or for any reason based on
discrimination of any kind, when such pain or suffering is inflicted by or at the instigation or
with the consent or acquiescence of a public official or other person acting in official capacity. It
does not include pain or suffering arising only from, inherent in or incidental to lawful
sanctions.”2

CUSTODIAL VIOLENCE UNDER CRIMINAL PROCEDURE

CODE, 1973

Custodial Violence is stigma for humanity in which state machinery have legal duty to protect
citizens, abuses state power, causes severe pain or suffering to helpless person in a custody. It is
utter violation of human right and human dignity. In criminal procedure attempts has been made

1
(1997) SCC 416 at P.424.
2
Art.1.1 of Convention Against Torture, 1984.
to protect human right and dignity and various provision has been provided to prevent custodial
violence. It completely prohibits the custodial violence:

“No police officer or other person in authority shall offer or make or cause to be offered or made,
any such inducement, threat or promise as is mentioned in section 24 of Indian Evidence Act,
1872 (1 of 1872).”3

RESTRICTION ON POWER OF ARREST

In most of the cases police arrest the person without warrant for investigation and in the
custody they do custodial violence for extracting information. Sometimes police officers
even not shows the arrest in record and without legal arrest person is kept in custody for
extracting information and for other purposes and the custodial violence is inflicted. This
power of arrest without warrant is regulated by Section 42 and 43 of the Cr.P.C. Further
for exercise of power police officers must have credible information or reasonable
complaint or reasonable suspicion or have knowledge about complicity of person in
offenses. So, these all restrict the power of police officer and arresting power to police is
given mostly in case of cognizable offenses.

Further in case of BIR BHADRA PRATAP SINGH V. D.M. AZAMGARH4, Allahabad high
court by interpreting arresting power imposed one more check that even if police officer
is empowered by section 41 to arrest without warrant this power is to be exercised in all
cases where the obtaining of warrant from magistrate would involve unnecessary delay
defeating the arrest itself.

For prevention of custodial violence express provision is given in S.49 of the Cr.P.C. and
it provide that person arrested shall not be subjected to more restraint than necessary to
prevent his escape. After arrest it is constitutional and statutory requirement that within
24 hours from the arrest person must be produced before magistrate 5 thus reducing the
change for third degree measures.

3
Sec. 163, Criminal Procedure Code, 1973.
4
AIR 1959 All 384.
5
Art. 22 of constitution of India; SS. 56, 57, 76 and 167 of Cr.P.C. 1973.
 Section 54 Cr.P.C. requires preparation of injury report at time of arrest or immediately
after the arrest and one copy of such report is to be given to arrestee free of cost. Further
it shall be the duty of the officer to take care of arrestee6 and to give information of arrest
and place of custody to his relative or friend nominated by him.7

DIRECTION FOR THE USE OF MODERN METHOD OF

INVESTIGATION

Police officers are not properly trained for the collection of the evidence by use of
modern method of investigation. This is major cause of custodial violence. Now it is
provided that :

“Examination” shall include the examination of blood, blood stains, semen, swabs in case
of sexual offenses, sputum and sweat , hair samples and finger nail chippings by the use
of mode scientific technique including DNA profiling and such other tests, which the
registered medical practitioner think necessary in a particular case”8

RIGHT TO SILENCE

Police officer has power to interrogate the persons acquainted with fact and
circumstances of the cases for collection of evidence. It became more devastating by one
more power available to police officer u/s 160 of Cr.P.C. empowering the police officer
to call any person acquainted with fact and circumstances of the case in police station for
interrogation, which is much misused for committing custodial violence.

For preventing misuse of these power section 163 expressly gives direction that during
interrogation threat or inducement cannot be given to accused person and also u/s 161

6
Sec. 55-A Cr.P.C. 1973.
7
Sec. 50-A Cr.P.C. 17973.
8
Explanation to Sec.53 of Cr.P.C. 1973.
 person interrogated is bound to answer truly but he has liberty to not answer that question
which would have tendency to expose him to a criminal charges. It means accused has
two rights: right to refuse to answer incriminating question and right to silence. So, these
provisions some how save the person from custodial violence.

INQUIRY BY MAGISTRATE INTO CAUSES OF DEATH OR RAPE IN

CUSTODY

Due to custodial violence death and sexual assault in police custody have become
common media highlighted phenomenon, needed to be tackled properly by proper
investigation and inquiry. In case of custodial death and sexual assault there may be
possibility that investigating police officer may favor alleged police officer , therefore in
section 176 of Cr.P.C. special inquiry is prescribed to be conducted by magistrate in
custodial death and custodial sexual assault cases. Inquiry in custodial violence by
magistrate is conducted in addition to or instead of the investigation held by police officer
where any person dies or disappear or rape is alleged to be committed on any woman
while such person or woman is in the custody of the police or any other custody
authorized by the magistrate or the court.9

CONCLUSION

Custodial violence is a worldwide problem. Police torture in lock-ups creates great challenge
before the criminal justice system. One very important causation for custodial violence is that the
police officers are not properly trained and educated about human right and importance of
protecting human dignity , they considered themselves above the law. Therefore, police officer
are unable to comprehend the consequences and effect of custodial violence.

9
Sec. 176(1-A), Cr.P.C. 1973.
Asian Centre for Human Rights (ACHR) in its report, released on June 26, 2018 stated that a total
of 1,674 custodial deaths, including 1,530 deaths in judicial custody and 144 deaths in police
custody, took place from 1 April 2017 to 28 February 2018.10 Which means that on an average
there were about 5 custodial deaths per day in the aforementioned time period.

In spite of legal measures and judicial direction problem is unchecked creating greater challenge
before criminal justice system.

10
http://www.achrweb.org/wp-content/uploads/2018/06/TortureUpdateIndia.pdf