Trends of Custodial Death: Is the rule of law still alive?

-By Vikalp Sharma

“Torture is wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is no way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone, paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself.”

-Adriana P. Bartow

The death of father and son in Sathankulam town in Tamil Nadu due to the custodial torture became a matter of grave concern not only in the State but in the whole of the Country. The numbers of custodial deaths have been increasing and the importance of Rule of Law is not considered by the Police Personnel that much.

J. Benicks and his father P. Jayaraj who owned a mobile shop in the town were arrested by the Sathankulam Police for violating the lockdown norms and during the custody, policemen brutally tortured father and son and eventually killed them. The gruesome act of police led the protest in the streets of the district where people demanded justice for the father and son and for the traders as well.

The Bench of Madras High Court in Madurai took Suo Moto cognizance of the concerned case and called for the records of the death of father and son. The policemen who were present in the case; Balakrishnan, Raghu Ganesan, and Sridhar were suspended, and Chief Minister of Tamil Nadu transferred the case to the Central Bureau of Investigation for further inquiry. After the submission of the report, the case flared up even more because policemen had refused to cooperate with the inquiry and even deleted the CCTV footage.

Before CBI took the cognizance of the case, Crime-branch Crime Investigation Department (CB-CID) altered the charges from Section 176 (1A)[1]which states that “the Judicial Magistrate shall conduct an inquiry of death in police custody” of The Code of Criminal Procedure, 1973 to Section 302[2] Indian Penal Code,1860 which states the “punishment for murder”. In 2019, a total of 1731 people were tortured and killed in custody in India.[3]

Supreme Court in a plethora of cases has taken a strict view as regards custodial deaths. In Dalip Singh v. State of Haryana[4], it held two constables along with the Sub-Inspector of Kurukshetra District guilty of causing the death of the accused by beating and convicted them under Section 304 of IPC, 1860[5] which states the punishment of causing death by negligence.

Death in custody deprives the deceased of his fundamental right to life enunciated under Article 21 of the Constitution[6] and providing compensation to the family of the deceased seems to be considered as an appropriate relief. In Nilabati Behera v. State of Orissa[7], Apex Court provided relief in terms of compensation for the death of petitioner’s son in the custody of Police, also in Saheli v. Commissioner of Police[8], the Supreme Court made it quite clear that the state is liable for the tortious acts committed by its agency.

D.K Basu v. State of West Bengal[9], the Apex Court enunciated 11 guidelines to curb the atrocities carried out by the Police officers in the custody, however, in 2015 Supreme Court added several guidelines to put an impediment on the menace, which included installing of CCTV cameras in the Police Station and this is one of the accusations made on the police officers that they deleted some parts of the CCTV footage.

Conclusion

Indeed, stern actions are taken against the police personnel who are found guilty of the custodial death, however, the cases are increasing. There might be a reason that police authorities enjoy unlimited powers in the Indian legal system, especially during these unprecedented times, police are enjoying their powers in an unquestionable way.

Being the custodians of law, they hold the police records, and thus it makes it very difficult to establish or prove the guilt in the police custodial deaths. Even one of the eminent lawyers in India has filed a petition for the modification of the guidelines passed in DK Basu v. State of West Bengal[10], he is claiming that these guidelines are lacking the legislature backing, power of arrest and prevention of custodial violence is not sufficient.

There have been many incidents for example; Hyderabad police encounter case, although these encounters are good in justice in terms of the perspective of common people, however, Rule of Law is severely getting disturbed, the Law is made for us and it should always prevail no matter how much heinous the crime is.

For the mere suggestion, powers of police in context to arrest without the warrant in the cases of cognizable offense on the ground of suspicion should be restricted.


[1] The Code of Criminal Procedure, 1973 (Act no. 2 of 1974).

[2] The Indian Penal Code, 1860 (Act no. 45 of 1860).

[3] Five custodial deaths in India daily, says report The Hindu, https://www.thehindu.com/news/national/five-custodial-deaths-in-india-daily-saysreport/article31928611.ece (last visited Jul 31, 2020).

[4] Dalip Singh v. State of Haryana, AIR 1993 SC 2119.

[5] The Code of Criminal Procedure, 1973 (2 of 1974).

[6] The Constitution of India, 1950.

[7] Smt. Nilabati Behera v. State of Orissa, AIR 1993 SC 1960.

[8] Saheli v. Commissioner of Police, (1990) 1 SCC 422.

[9] D.K Basu v. State of West Bengal, AIR 1997 SC 610.

[10] Id.

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