The legal issue of Custodial Violence in India


The term “custodial violence” has not been defined under any law. It is a combination of two word custody and violence. The word ‘custody’ implies guardianship and protective care. Even when applied to indicate arrest or imprisonment, it does not carry any evil symptoms during custody. In a law dictionary the word ‘custody’; has been defined as charge and with regard to a person in imprisonment: judicial or penal safekeeping. As Per Chamber Dictionary, the condition of being held by the police, arrest or imprisonment is called ‘custody’. As Per Legal Glossary Dictionary, custody is imprisonment, the detaining of a person by virtue of lawful Power or authority.

Section 167 of the Code of Criminal Procedure speak about two type of custody i.e. police custody and judicial custody. As per section 167(1) of Cr. P.C., “the magistrate to whom an accused person is forwarded under this section may whether he has or not has jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as he may think fit. Provided that the magistrate may authorize the detention of the accused person, otherwise than in the custody of the police, beyond the period of 15 days if he is satisfied that adequate ground exist for doing so. So as per section 167 (1) of Cr. Pc. 'police custody' can be granted for a maximum period of fifteen days only' Police custody basically means police remand for the purpose of interrogation. In law actually a police officer has two occasion to keep a person in its custody firstly, from the period when he arrest a person till he produce the said person in the court i.e. first 24 hours of the arrest of accuse. Secondly, when police gets, remand from court after producing the accuse in the court which can be extend up to a maximum period fifteen days, thereafter, a person is sent in judicial custody which in general terms means jail or prison, where an accuse remain in custody till he gets bail or if convicted and sentenced to jail till the completion of sentence. As per law, ‘custody’ of a person begins when the police arrest him.

Other type of custody as mentioned earlier is ‘judicial custody’ which means sending a person in jail or prison. As per section 3 (1) of ‘The Prison Act, 1894’, ‘Prison’ means any jail or place used permanently or temporarily under the general or special order of a State Government for the detention of prisoners and include all land and building appurtenant thereto, but does not include:-

(a) Any place for the confinement of prisoners who are exclusively in the custody of police; or
(b) Any place specially appointed by State Government under section 541 of the old Criminal Procedure Code, 1882,
(c) Any place, which has been declared by the State Government by general or special order to be subsidiary jail.

The term ‘violence’ is the state or quality of being violent, excessive unrestraint or unjustified force, outrage perforate injury. ‘Violence’ in its literal sense has been defined as the use of force by one person over another so as to cause injury to him. The injury may be physical, mental or otherwise. The simple definition of violence is behaviour designed to inflict injury on a person or damage to property. Custodial violence is a term, which is used for describing violence committed against a person by a police authority. Thus, custodial violence can be defined as “an inhuman trait that springs out of a perverse desire to cause suffering when there is no possibility of any retaliation; a senseless exhibition of superiority and physical power over the one who is overpowered.” According to Law Commission of India, crime by a public servant against the arrested or detained person who is in custody amounts to custodial violence. According to Dr. S. Subramaniam, “Any use of force threat psychological pressure is termed as custodial violence. According to Justice B.P. Jeevan Reddy, “Custodial violence includes torture, death, rape and excessive beating in police custody”.

Although, overcrowding, malnutrition, unhygienic conditions and lack of medical care are some of the factors of death in police and judicial custody, but custodial violence remains the common cause of deaths in prisons and lock-ups. The custodial violence is a generic term and includes all and every type of torture, third degree, harassment, brutality, use of force not warranted by law, etc. custodial violence include illegal detention, arrest which is wrongful or on illegal or on insufficient grounds using third degree method, on the suspects, humiliating them, using filthy language, not allowing them to sleep, extorting confession under pressure, padding up of additional evidence, misuse of the power regarding handcuffing not allowing to meet counsel or family member to accuse, denial of food etc. However since the torture or third degree in the most common and prominent form of custodial violence by the police.

The police officials commit an act of violence upon the persons in their custody under the guise of investigation and interrogation. The heinousness of this crime is that it is committed upon the citizens by the very person who is considered to be the guardian of the citizens. It is committed under the shield of uniform and authority within the four walls of Police Station or lock up, the victim being totally helpless in these circumstances. The protection of an individual from torture and abuse of power by police and other law enforcing officers is a matter of deep concern in a free society.

The chances of violence committed by police on persons in its custody are much greater than any other form of violence. The basic reason behind it is that the victims of such violence are unable to protest against it. The police officers use their official position to manipulate evidences against themselves. Death in custody is generally not shown on the records of the lock-up and every effort is made by the police to dispose of the body or to make out a case that the arrested person died after he was released from jail. Any complaint against torture is not given attention because of ties of brotherhood. No direct evidence is available to substantiate the charge of torture or causing hurt resulting into death, as the police lock- up where generally torture or injury is caused is away from public gaze and the witnesses are either policemen or co-prisoners who are highly reluctant to appear as prosecution witness due to fear of retaliation by the superior officers of the police.

However, in spite of the Constitutional and Statutory provisions contained in the Criminal Procedure Code and the Indian Penal Code aimed at safeguarding personal liberty and life of a citizen, the growing incidence of torture and deaths in police custody has been disturbing. Experience shows that the worst violations of human rights take place during the course of investigation when the police, with a view to securing evidence or confessions, often resort to third-degree methods including torture and techniques of arrests by either not recording them or describing the deprivation of liberty merely as "prolonged interrogations". A reading of the morning newspapers carrying reports of dehumanising torture, assault, rape and death in police custody or other governmental agencies almost every day is, indeed, depressing. The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the credibility of the rule of law and the administration of the criminal justice system. As a result the society rightly feels perturbed. The society’s cry for justice becomes louder.

Any form of torture or cruel, inhuman or degrading treatment, whether it occurs during investigation, interrogation or otherwise needs the severest condemnation. If the functionaries of the Government become law-breakers, it is bound to breed contempt for the law and no civilised nation can permit that to happen. Custodial violence may be both physical and or mental. It may also consist of gross negligence or deliberate inaction. In a case, when a person was suffering from high blood pressure or similar type of disease, almost for which continuous medicine is essential, and he is not allowed to take medicines the men develop serious health problem or dies. The Apex Court held it to be a case of custodial violence and the State was made liable for damages for their gross negligence in protecting the person in custody.

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