CUSTODIAL CRIME IN INDIA

SUBMITTED TO :Mr. MOHD. ATIF KHAN

FACULTY: CODE OF CRIMINAL PROCDURE
SUBMITTED BY : SARA PARVEEN
SEMESTER VII
ROLL NO. 130

HIDAYATULLAH NATIONAL LAW UNIVERSITY,

RAIPUR

Acknowledgements
This project has not only been a result of earnest research and hard work but also the constant
support and guidance of my teacher, Mr. Mohd. Atif Khan whose efforts and help throughout the
course of my project rightly deserve a mention, for providing me with the opportunity for
exploring a new side of the world of criminal law . Sir, I am grateful to you for providing me
with such an interesting topic that has enhanced my knowledge about the subject manifold.
My thanks to the staff and administration of HNLU for the infrastructure in the form of our
library and IT Lab that was a source of great help for the completion of this project.

Sara Parveen
(Semester VII)

Contents
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Research Methodology
Research Questions
Objective
Hypothesis
Mode of Citation
Scope and Limitation
Source of Data
Introduction
Custodial Crimes in India: A Historical Perpsective
Legal Framework: Custodial Violence and Custodial Death
Indian Constitution and International Conventions
Constitutional Safeguards for the Accused
Punitive Provisions In Criminal Law And Procedure
Custodial Jurisprudence: Role of Judiciary
Conclusion
References

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Research Methodology
This project report is an analytical and descriptive study on Custodial Crimes. Secondary
sources have been referred to and electronic sources have been used at large to gather
information about the topic.
Books and other references as guided by the faculty of have been useful in giving this project
its basic structure and details. Websites, article and dictionaries have also been used.
Footnotes have been provided wherever needed to acknowledge the source of information.

Research Questions
What is custodial crimes and what are the legal safeguards to it ?
What are the provisions in criminal code of procedure, 1973 to from protection of custodial
crimes ?
What are the various guidelines given by apex court of law so as to prevent custodial
crimes ?

Objectives
To enumerate the historical background of custodial crimes in India.
To study the legal framework which provides for safeguards for the accused who is in
custody.
To highlight specific provisions under the Criminal Procedure Code, 1973 for protecting
the rights of the accused and for securing his interest.
To enlist the various guidelines and directions given by the Supreme Court from time to
time with regards to custodial violence.
To highlight the shortcomings in the law at present and to suggest suitable measures for
curbing custodial crimes.

Hypothesis
Complaints of abuse of power and torture of suspects in custody by the police and other alw
enforcing agencies have been the concern of the society.custodial crimes and torture of persons
in police custody are heinous and revolting as they reflect betrayal of custodial trust by a public
authority against the defenceless citizen, such practices violate fundamental rights and human
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rights. There is a pressing need to control this malady. The victims of custodial crimes, torture,
injury or death, mostly belong to the weaker section of our society, the law comissions and
courts of law considered it necessary to take up this matter sou mom for in depth study and to
provide guidelines to prevent such atrocities.

Mode of Citation
Harvard Blue Book

Scope and limitation

The project basically emphasis as what type of torture and crimes are taking place
inside prison cells and under the custody of policed on the accused person. Also the
project deals with the historical perspective of the project and what role does the
court and judiciary plays for prevention of custodial crimes. The project is scarce
in dealing with much of the cases related to the subject.

Source of Data
Books and interenet research have been the source of information for this project. Also footnotes
and bibliography as per requirement of the project have been mentioned wherever needed.

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Introduction
If the custodians of law themselves indulge in committing crimes then no member of the
society is safer and secure.
-

The Apex Court; Bhagwan Singh v. State of Punjab

Article 21 of the Constitution provides that no person shall be deprived of his life and personal
liberty except according to procedure established by law, which is an inbuilt guarantee against
torture or assault by the State or its functionaries. The Code of Criminal Procedure also provides
the safeguards against legally questionable detention by laying down the procedure to be
followed by the police while making arrests. However, torture and assault have become a part of
police ways unfortunately and in many cases custodial deaths have been found to be little short
of custodial murder.
Custodial deaths raise serious questions about the credibility of the Rule of Law and
administration of criminal justice system. An offender has every right to be tried and punished in
accordance with the law and any punitive action taken outside the ambit of law is illegal.
Besides, no matter how heinous the crime may be, and howsoever dangerous be the criminal, he
or she has every right to be treated with human dignity. Despite inherent rights vested in the
accused, the number of custodial deaths is on a rise and it seems that many a times such deaths
go unchecked, uninvestigated. Whenever death occurs in custody, it raises the public interest and
attracts media attention. The Magistrate inquest is mandatory for any death of a person in
custody to ensure examination of the circumstances leading to death. Beyond Magistrates
inquest and in recent years information to Human Right Commission, however, there is no
formal public scrutiny of in-prison deaths and under such situations many avoidable factors
leading to death remains unexplored. The National Human Rights Commission received 1,473
cases of death in judicial custody, 124 cases of death in police custody and 2 cases of death in
para-military/defense forces custody during the period of 2006 2010.1
1NHRC Annual Report of 2010; Available at:
http://www.nhrc.nic.in/Documents/AR/NHRC_Annual_Report-09-10_Eng.pdf.
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This project aims at disclosing the reality about custodial deaths and custodial violence in India.
The project seeks to unfold the legal rights guaranteed to the accused and the punitive provisions
applicable for those government authorities who engage in such heinous activities.

CUSTODIAL CRIMES IN INDIA: A HISTORICAL

PERSPECTIVE
The phenomenon of custodial crime is not a new in India. We had reference of Torture and
violence with the police in India, even since the Vedic age (2000-1400 B.C.). Theordeals of fire,
water an single combat were used. In the Epic period (1400-800 B.C.)torture was practiced on
prisoners by the police. Torture in various forms was widely prevalent in age of laws and
philosophy (800 B.C. -320 B.C.). Kautilyas Arthasatra speaks about various kinds of torture
such as burning of limbs, tearing by wild animals, tramping to death by elephants and bulls,
cutting of limbs and mutilation etc. Manu, the law giver of this age emphasized the necessity of
torture to protect the society from the hands of the criminals. The Buddhist period ( B.C. 300-300
A.D.) was an age of great humanitarianism and administration of justice had become
correspondingly imbued with the humanitarian ideals. Torture in any form was strictly forbidden
and special favors were shown to prisoners, who happened to be women, aged or who had many
dependents. In Gupta Period (A.D. 320-500) if the facts against prisoners were not clearly
established by evidence, recourse was to be held to the four kinds of ordeals, trial by ordeal fairly
common. Under the Mughals, no criminal or civil code existed. Torture toextort confession was
widely spread (Ghosh and Rustomji 1993).

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LEGAL FRAMEWORK: CUSTODIAL VIOLENCE AND

CUSTODIAL DEATH
Indian Constitution and International Conventions
The legal framework in India both constitutional and statutory contains provisions relating to
safeguards arrest, detention, custodial torture and other crimes in custody. The substantive law
(Indian Penal Code, 1861) provides punishment of a person causing injury, torture or death on
the body of a person in custody. The procedural law (Criminal Procedural Code, 1973 and Indian
Evidence Act, 1872) contains several provisions safeguarding the legal rights of a person in
custody. The Constitutional and the relevant statutory provisions on the subject have been
supplemented by the significant judicial pronouncements. In addition, the Protection of Human
Right Act, 1993 provides institutions of the National and State Human Rights Commissions as
well as Human Rights Courts for better protection of human rights of a person in custody. India
has ratified, acceded and singed the International Declarations, Covenants, Conventions and
treaties such as Universal Declaration of Human Rights( UDHR),1 International Covenant on
Civil and Political Rights ( ICCPR),2 International Covenant on Economic, Social and Cultural
Right(ICESCR),3 International Convention on the Elimination of All forms of Racial
Discrimination( ICERD)4, Convention on the Elimination of All Formsof Discrimination against
Women( CEDAW),5 Convention on the Right of the Child(CRC)6, Convention against Torture
and Other Cruel, inhuman or Degrading Treatment and Punishment(CAT),7 and the International
Convention on the protection of the Rights of All persons against Enforced Disappearance
( CPAED)8. This apart, the UN Declaration on Basic Principles of Justice for Victims of Crime
and abuse of Power is relevant.

Constitutional Safeguards For The Accused

The Constitution in its part III deals with Fundamental Rights. The prohibitions imposed by
Article 20, 21 and 22 of the Constitution are directly relevant to the criminal process. Article 20
(1) prohibits retrospective operation of penal legislation. Article 20(2) guards against double
jeopardy for the same offence. Article20 (3) provides that no persons accused of any offence
shall be compelled to be a witness against himself. Of course, constitution article protects against
testimonial compulsion on the premise that such compulsion may act as a subtle from of
coercion on the accused. Article 21 of the Constitution provides that no person shall be deprived
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of life or personal liberty except according to procedure established by law. The expression Life
and personal libertyoccurring in the Article has been interpreted to include Constitutional
guarantee against torture, assault or injury against a person arrest and custody. The following are
the illustrative decisions, in Dastagir v. State of Madres,2it was held that, punishment which has
an element of torture is unconstitutional.
In case of Inderjeet v. State of Uttar Pradesh, the Apex Court hold the view that prison
restrictions amounting to torture, pressure or infliction and going beyond what the court
authorities, are unconstitutional further it extended that an under-trial or convicted prisoner
cannot be subjected to physical or mental restraint, which is not warranted by the punishment
awarded by the Court, or which amount to human degradation.3. Article 22(1) and 22(2) of the
Constitution are also relevant for the present purpose because one of their objects is to ensure
that certain checks exist in the law to prevent abuse of power of arrest and detention. Article
22(1) provides that no person who is arrested shall be detained in custody without being
informed as soon as may be, of the ground for such arrest ,nor shall he be, of the grounds for
such arrest, nor shall be de denied the right to consult and to be defended by legal practioner of
the choice. Article 22(2) provides that every person who is arrested and detained in custody shall
be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding
the time necessary for the journey form the place of arrest to court of the Magistrate and no such
person shall be detained in custody beyond the said period without the authority of a Magistrate.

Punitive Provisions In Criminal Law And Procedure

Consistent with the constitutional guarantee, the statutory provisions are contained in Indian
Penal Code, 1860, Indian Procedure Code, 1973 and Indian Evidence Act, 1872 for protection of
a person arrested in connection with the commission of an offence as well as prevention of
custodial commission of crimes in police custody. Punitive Provisions are contained in the Indian
Penal Code which seeks to prevent violation of right of life and personal liberty of a person in
custody. The definition in section 44 of the Code which defines the expression injury as
covering harm to body ,mind and reputation or property. Section 220 provides for punishment t
an officer or authority that detains or keeps a person in confinement with the corrupt or a
2AIR ,1960 SC 759
3Sheela Barsev. State of Maharashatra. AIR 1983 SC 378
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malicious motive, Section 330 and 331 provide for punishment of those who inflict injury or
grievous hurt on a person to extort confession or information in regard to commission of an
offence Section 330 therefore directly makes the torture punishable under the Indian Penal
Code,1860 its Sections 330 and 331 read : Section 330 says, : whoever voluntarily causes hurt
for the purpose of extorting from the sufferer, or any person interested in the sufferer, any
confession or any information which may lead to the detection of an offence or misconduct, or
for the purpose of constraining the sufferer ornay person interested in the sufferer to restore or to
cause the restoration of any property or valuable security or to satisfy any claim or demand, or to
give information which may lead to the restoration of any property or valuable security, shall be
punished with imprisonment of either description for a term which may extend to seven years ,
and shall also be liable to fine. According to Section 331, whoever voluntarily causes grievous
hurt for the purpose of extorting from the sufferer, or any person interested in the sufferer, any
confession or any information which may lead to the detection of an offence or misconduct, or
for the purpose of constraining the sufferer or nay person interested in the sufferer to restore or to
cause the restoration of any property or valuable security or to satisfy any claim or demand, or to
give information which may lead to the restoration of any property or valuable security, shall be
punished with imprisonment of either description for a term which may extend to ten years , and
shall also be liable to fine.
Sections 340 to 348 of the Indian Penal Code constitute a group of sections dealing with
wrongful restraint, and wrongful confinement and their aggravations. Of course, they envisage
that the confinement itself is illegal an ingredient prominently brought out by the adjective
wrongful. Whereas section-348 which provides for punishment to a person who wrongfully
confines any person for extorting any confession etc. The section also punishes extortion
committed to extract information leading to the detection of offence or misconduct. The
relevance of the Code of Criminal Procedure, 1973, various contain provisions intended to
operate as a safeguard against custodial offences ranged from arbitrary arrestdetention in custody
to compensation to the victims of custodial abuses. Section 50 of the Code talks about ground of
the arrest and right to bail. This section has been regarded as mandatory, particularly in the light
to constitutional guarantee, so that non-compliance with the section renders the arrest and
detention illegal.4
4(Ashen v. The State, 1987 Cri. LJ1750).
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The arrested person has right to medical examination if he or she a complaint of torture,
maltreatment under section 54 of the Code. Section 56, 57 and 58 related with the action after
arrest is made. Section 56 of the Code provides that a police officer making an arrest without
warrant shall, without unnecessary delay and subject to provisions as to bail, send the person
arrested before Magistrate having jurisdiction in the case or before the officer in charge of a
police station. By section 57, no police officer shall detain in custody a person arrested without
warrant for longer period than under all the circumstances of the case is reasonable and such
period shall not, in the absence of a special order of a Magistrate under section 167, exceed 24
hours exclusive of the time necessary for the journey from a place of arrest to the court of the
Magistrate. Provisions of section 57 are mandatory. Section 58 provides that officers in charge of
police stations shall report to the District Magistrate or Sub Divisional Magistrate about cases of
all persons arrested without warrant, within the limits of the respective stations, whether such
persons have been admitted to bail or otherwise. Where the arrest of a person under the Code of
Criminal Procedure, 1973 is under a warrant, section 70-81 of the Code become applicable,
ofwhich sections 75 and 76 are relevant for the present purpose. Section 75 deals with
notification of substance of warrant and Section 76 provides person arrested to be brought before
Court without delay not exceeding 24 hours exclusive of the time necessary for the journey from
the place of arrest to the nearest Magistrate Court.In case when anyperson dies while in custody
for the police, the law requires a mandatory enquiry by theMagistrate into the cause of death.5

5Section 176 of Code of Criminal Proceedings 1973

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CUSTODIAL JURISPRUDENCE: ROLE OF JUDICIARY

Judiciary through various creative pronouncements evolved custodial jurisprudence in dealing
with custodial crimes in police custody. It includes arbitrary arrest & detention, dehumanizing
methods of Interrogation or torture in custody, compensation to the victims of custodial crimes
and prosecution and punishment for torturer. In a leading case of JoginderKumar v. State of
Uttar Pradesh6, the Supreme Court has examined the power of arrest by police and observed:
No arrest can be made in a routine manner on a mere allegation of commission of an
offencemade against a person . it should be prudent of a police officer in the interest of
protection of theconstitutional rights of a citizen and perhaps in his own interest that no arrest
should be madewithout a reasonable satisfaction reached after some investigation as to the
genuineness andbonafides of a complaint and a reasonable belief both as to the persons
complicity and even so asto the need to effect arrest. Denying a person of his liberty is a serious
matter. Therecommendations of the Police Commission merely reflect the constitutional
concomitants of the
Fundamental Rights to personal liberty and freedom. A person is not liable to arrest merely on
thesuspicion of complicity in an offence. There must be some reasonable justification in the
opinion ofthe officer effecting the arrest that such arrest is necessary and justified.
In a matter relating to custodial violence and arrest of female person, the court in case of Sheela
Barse v. State of Maharashatra7 has issued the following relevant directions as under:
Four or five police lock ups should be selected in the reasonably good localities where only
female suspects should be kept and they should be guarded by female constables.
Female suspect should not be kept in a lock up in which male suspects are detained.
Interrogation of female suspects should be carried out only in the presence of female police
officers/ constables.
Whenever a suspect is arrested by the police and taken to the police lock up, the police will
immediately give intimation of the fact to the nearest legal aid committee.
61994 Cr. L.J. 4SCC 260
7AIR 1983 SC 378
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 Surprise visits to the police lock ups in the city should periodically be made with a view to
providing arrested person an opportunity to hear their grievances and ascertain the conditions of
police lock up.
As soon as a person is arrested, the police must immediately obtain from him/her the name of
any relative or friend who he/she would like to be informed about his/her arrest and the police
should get in touch with such relative or friend and inform him about arrest.
The Magistrate before whom an arrested person is produced shall enquire from the arrested
person whether he has any complaint of torture or maltreatment in police custody.
The Supreme Court widely elaborated the right against self incrimination duringinterrogation in
police custody in its various judgments. In case of Nadini Satpati v. P.L. Dhani8 the Court held
that the right against self-incrimination and right to silence of the accused. It is upheld that if
there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but
sufficiently substantial, applied by the police in obtaining information from the accused, it
becomes compelled testimony violative of the right against self-incrimination. The court also
held that compulsion maybe presumed in the case of custodial interrogation by the police unless
certain safeguards erasing duress are adhered to. It further observed that the police ought to
permit a lawyer to assist the accused if he can afford one. However, it did not opine that the state
is under an obligation to provide a lawyer to the accused if he is poor. It also acknowledged the
right to silence against self incrimination. The accused is not bound to answer self
incriminatory questions. But he does not have right to complete silence. In other words nonincriminatory questions can be asked and the accused is bound to answer where there is no clear
tendency to criminative.The highest court of the country in case of Bhagwan Singh vs. State of
Punjab9 has observed that it may be a legitimate right of any police to interrogate or arrest any
suspect on some credible material but such an arrest must be in accordance with the law and the
interrogation does not mean inflicting injuries. It should be in it true sense purposeful, namely, to
make the investigation effective. Torturing a person and using third degree methods are of
medieval nature and they are barbaric and contrary to law. The police would be accomplishing
behind their closed doors precisely what the demands of our legal order forbid. They must adopt
some scientific methods than resorting to physical torture. The Court further commented if the
8A.I.R. 1978 SCC 1075
9AIR 1992 3 SCC 249
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custodians of law themselves indulge in committing crimes then no member of the society is
safer and secure.Even when formal prosecution is launched by the victim or next of kin, no
direct evidence is available to substantiate the charge of torture resulting in death, as the police
lock-up where generally away from the public gaze. The issue was dealt by Supreme Court in
case of Munshi Singh Gautam& Others v. State of Madhya Pradesh10 the Apex Court
observed;
Rarely in cases of police torture or custodial death, is direct ocular evidence available of the
complicity of the police personnel, who alone can only explain the circumstances in which a
person in their custody had died. Bound as they are by the ties of brotherhood. It is not known
that police personnel prefer to remain silent and more often than not even prevent the truth to
save their colleagues.
In the historic judgment in D.K. Basu vs. State of West Bengal11the Supreme Court initiated the
development of Custodial Jurisprudence including torture to arrestee infringement of
fundamental rights, citizen entitled to receive compensation from State, quantum of
compensation would depend on peculiar fact of each case and punishment under section 330 of
Penal Code is inadequate to repair the wrong done to citizen. The Supreme Court of India
lamented on the control of police power of arrest and issued guidelines in carry out arrest and
detention by police and law enforcement agencies in the county. They also have the force of law
(Article 141 of the Constitution states that the law declared by the Supreme Court is binding on
all courts in India.). An officer who willfully or inadvertently ignored Supreme Court directives
can be tried in court under relevant provisions of the Indian Penal Code and/ or under the
Contempt of Courts Act, 1971.

10AIR 2005 SCC 631

11A.I. R. 1997 SC 610
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CONCLUSION
Custodial deaths are usually of three types: Suicidal, homicidal and natural. As a procedure,
whenever an accused commits suicide in a police station, an inquiry is initiated by the crime
branch unit concerned. The local police station has to send a preliminary report to the National
Human Rights Commission. In most cases, relatives of the deceased allege that the death in
police custody was due to "torture". But police investigations invariably end up issuing a
clean chit to the police officers concerned, by terming it a natural death or suicide. In recent
years, third degree torture and custodial deaths have become an intrinsic part of police
investigations and the injury inflicted on the prisoners is sometimes unbearable. No doubt, the
police officers have contributed towards the maintenance of public order and their plans are
also enforced with purity, activity, vigilance and description. But more often that, the police
officers have been abused and condemned for torturing the public, particularly those who are
in custody and detention, and inflicting injuries to their life and property. In almost every state
there is an increase in frequency of deaths in custody, generally prescribed by the newspapers
as lock-up deaths. Newspapers, almost everyday, carry reports of assault, torture, rape, and
death of persons in police custody. This feature has attained such an alarming proportion that
it is affecting the credibility of the rule of law and order and also the administration of the
criminal justice system. Hence there is an urgent need to examine the issue in depth to
develop criminal jurisprudence and also to make the police officers accountable for their acts
and omissions. Despite the fact that we have detailed provisions to protect and safeguard the
human rights of the people, we see that a steady process of devaluation of human dignity and
personality is irresistibly advancing and brutal betrayal of those basic rights, which are
enshrined in international bill of human rights, becomes a common scenario. The human
rights are daily providing to be a mere teaming illusion and promise of unreality. 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.

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REFRENCES
BIBLIOGRAPHY

PILLAI, CHANDRASHEKHARAN K.M, GENERAL PRINCIPLES OF CRIMINAL

LAW, 2nd Edition, Eastern Book Company (2012)

RATANLAL & DHIRAJLAL, LAW OF CRIMES, 25th Edition, Bharat Law House, New
Delhi (2011)

KINGSLEY NAPLEY, SERIOUS FRAUD, INVESTIGATION AND TRIAL, 4 th Edition,

Lexis and Nexis (2012)

HUDA SHAMSUL, PRINCIPLES OF LAW OF CRIMES, Eastern Book Company.

WEBLIOGRAPHY

http://bdlaws.minlaw.gov.bd/pdf_part.php?id=75
http://www.isidelhi.org.in/hrnews/HR_THEMATIC_ISSUES/Police/Police-2013.pdf
http://www.rmlnlu.ac.in/webj/custodial_deaths_barkha_Neha.pdf
http://www.ihro.org.in/custodial_deaths.html
http://ncrb.nic.in/CII2010/cii-2010/Chapter%2013.pdf
http://shodhganga.inflibnet.ac.in/bitstream/10603/2714/6/06_abstract.pdf

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