Cases on custodial death

D.K. Basu v. State of West Bengal

The executive chairman legal Aid Service, West Bengal, a non political organization register
under the societies registration Act, on 26th August 1986 address a letter to the Chief Justice of
India drawing his attention to certain news items published in the telegraph dated 20,21 and 22of
July 1986 and in the statesman and Indian Express dated17th August, 1986 regarding death in
police lock-ups and custody. The executive chairman after reproducing the news items submitted
that it was imperative to examine the issue in death and to develop Custody Jurisprudence´ and
formulate modalities for awarding compensation to the victim and /or family members of the
victim for atrocities and death caused in police custody and provide for accountability of the
officer concerned it was also stated in the letter that efforts are often made to hush up the matter
of lock-up deaths and thus the crime goes unpunished and flourishes´ . It was requested that the
letter along with the news items be treated as a writ petition Public interest Litigation´ category.
Considering the importance of the issue rose in the letter and being concerned by frequent
complaints regarding custodial violence and death in police lock-up, the letter was treated as a
writ petition and notice was issued on 9/2/1987 to the respondent In response to the notice the
State of West Bengal filed a counter. It was maintain that the policewas not hushing up any
matter of lock-up death and that wherever police personnel were found to be responsible for such
death, action was being initiated against them. The respondent characterizes the writ petition as
miss conceived misleading and untenable law. After hearing the parties Supreme Court held
custodial death is perhaps one of the worst crime ina civilized society Governed by the rules of
law. The rights inherent in Article 21 and 22 (1) of the Constitution require to be jealousy and
scrupulously protected. Court cannot wish away the problem. Any form of torture or cruel
inhuman or degrading treatment would fall within the inhibition of Article 21 of

the Constitution, whether it occurs during investigation interrogation or otherwise if the

functionary of the Government become law breakers, it is bound to be contempt for law and
would encourage lawlessness and everyman would have the tendency to become a law unto
himself there why leading to anarchanism. No civilized nation can permit that to happen thus a
citizen said of this fundamental right to life, the moment a police men arresthim? Can the right to
life of a citizen we put abeyance on his arrest? These questions touch the spinal cord of human
rights jurisprudence. The answer, indeed, has to be an emphatic µno¶ the precious right
guaranteed by Article 21 of Constitution of India cannot be denied to on with unreal detents and
other prisoner in custody expect according to the procedure established by law by placing such
reasonable restriction as are permitted by law. The Supreme Court also issued the following
requirement to be followed in all cases of arrest or detention till legal provision is made in that
behalf as preventive measures.
1. The police personal carry out the arrest and handling the interrogation of the arrestee should
bear accurate, visible and clear identification and named tags with their designation. The
particular of all such police personnel who handle interrogation of the arrested must be recorded
in a register.
2. That the police officer carrying out arrest of the arrestee self prepare a memo of arrest at the
time of arrest and such memo shall be attested by at least one witness. Who may be either
amember of the family of the arrestee or a respectable person of the locality from where the
arrestis made. It shall also be counter signed by the arrested and shall contain the time and the
date of arrest.
3. A person who has been arrested or detained and is being held in custody in a police station or
interrogation centre or other lock-up shall me entitled who have one friend or relative or other
person known to him or having interest in his welfare being informed as soon as practicable, that
he has been arrested and is being detained at the particular place, unless the attesting witness of
the nemo of arrest his himself such a friend or a relative of the arrestee.
4. The time, place of arrest and venue of custody of an arrestee must be notified by the police
where the next friend or relative of the arrestee lives outside the district or town through the legal
head organization in the district and the police station of the area concerned telegraphly within a
period of 8-12 after the arrest.
5. The person arrested must be made aware of this right to have someone informed of his arrestor
detention as soon as he is put under arrest or his detained.
6. An entry must we made in the diary at the place of detention regarding the arrest of the person
which shall also disclosed the name of the next friend of the person who has been informed of
the arrest and the names and particulars of the police officials in whose custody the arrestee is.
7. The arrestee should, where he so request, be also examined at the time of his arrest and major
and minor injuries, if any person on his/her body, must be recorded at that time. The inspection
memo´. Must be signed by both the arrestee and the police officers effective the arrest and its
copy provided to the arrestee.
8. The arrestee should be subjected to medical examination by a trained Doctor every 48 Hrs
during his detention by a doctor on the panel of approved Doctor appointed by Director, health
service of the concerned State or Union Territory Director, Heal service should prepare such a
panel for all Tehsil and District.
9. Copies of all the documents including the memo of arrest, referred to our, should be sent to the
illqa Magistrate for his record.
10. The arrestee may be permitted to meet his lawyer during interrogation, though not through
out the interrogation.
11. A police central room should be provided at all District and State Headquarters, where
information regarding the arrest and the place of custody shall be communicated by the officer
causing the arrest, with in 12 Hrs of effecting the arrest and the police central room should be
displayed on a conspicuous notice board Failure to comply with the said requirement shall apart
from rendering the concerned official liable for departmental action, also render him liable to be
punished for contempt of court and the proceeding of court may be instituted in any High Court
of Country having territorial Jurisdiction matter.

State of M.P. v. Shyamsunder Trivedi and others

This was an appeal filed by the State of M.P. against acquittal of the police officials by the trial
court and the High Court. As per prosecution case one Nathu Banjara of village Dhabala Deval,
brought to police station Rampura for interrogation as a suspect in murder case was tortured by
the police with the intension of extracting a confession and died consequently on 13/10/1981.The
allegations were denied by the accused as his dead body was found unclaimed at a distant place.
Three of the respondents, head constables Ram Naresh Shukla and Raja Ram Mishra and
constable Ganniuddin, while reversing the acquittal of the courts below, were convicted under
Section 304 part II/34, 201 and 342 IPC and were fine Rs 20,000 each. Whereas respondent
number 1 was convicted 304 part II/34 and sentenced for two years with a fine of Rs 50,000. The
analysis made by the court was that if there was evidence that the injury to any person was
caused when he was in police custody the court may presume that it was caused by the police
officer having that custody unless the officer proves the contrary. Further the post mortem report
also pointed out towards anti mortem torture.

Praful Kumar Sinha v. State of Bihar and others

In this case compensation was sought in Tort Law by the family of three persons who had died in
police custody due to atrocities committed by the police.
The apex court directed under Articles 32 and 21 of the Constitution of India the State
Government to make ex gratia payment of Rs 25,000 to family of each deceased. The settled
principles of Law of Tort were invoked and the direction was also issued that the State
Government may recover this amount from the tort feasors, that is, the police officials.
The reason for reaching the decision in this criminal writ petition was to compensate the family
members the loss to some extent

Smt Nilabati Behera v. State of Orissa

This writ petition was entertained by the Supreme Court under Article 32 of the Constitution on
a letter dated 14/09/1988 sent to the court by the petitioner for determining the claim of
compensation consequent upon the death of her son
On 01/12/1987 at about 8:00 AM the petitioner¶s son, Suman Behera,22, was taken from his
home by the police in connection with the investigation of an offence of theft and was detained at
the police out post. On 02/12/1987 at about 2.00 PM his dead body was found at some distance
on the railway track. Since no action was taken by the police, the apex court was contacted
through the letter. The defense of the police was that the allegations made against the police were
false as the deceased had managed to escapes from police custody at about 3.00 AM and could
not be apprehended thereafter in spite of a search were Taking consideration of the multiple
serious anti mortem injuries on the body of the deceased, the court observed that the death was
obviously unnatural and he had died as a result of the multiple injuries inflicted upon him while
he was in police custody and there after his dead body was thrown on the railway track.
The court observed that it was clear violation of human rights and fundamental freedoms by the
state and its agencies and in such type of cases compensation is an acknowledged remedy.
Further, defense of sovereign immunity was not available in case of violation of fundamental
rights was not available in defense and the court has obligation to grant the relief of
compensation. The court awarded Rs 150,000 as compensation

Mani Kumar Thapa v. State of Sikkim

This was second appeal to the apex court after two successive convictions by the Sessions court
and the High Court respectively. On 12/02/1988 the accused police officials contacted the
deceased near his house who was taken by them in the jeep and there after his body was not
found.

No action was taken by the police on complaint of his wife but later on the FIR was registered
against the police officials. The Sessions court convicted all the accused and High Court
maintained the conviction on the ground that there was cogent evidence of the prosecution that
the deceased was taken by the police on 12/02/1988 and thereafter he was not only killed by the
police but also his dead body was disappeared.
The apex court treating it a case of circumstantial evidence relied upon the successful proof of
last scene theory and other links of the chain , dismissed the appeal. It also observed that as per
evidence of the prosecution witnesses, the accused one, a police sub ± inspector, was inimical to
the deceased and, therefore, there was sufficient motive for him to kill the deceased.
 TORTURE IN INDIA 2011 - REPORT

First published 21 November 2011.

© Asian Centre for Human Rights, 2011.

1. 14,231 custodial deaths from 2001 to 2010:

India must enact anti-torture law

From 2001 to 2010, the National Human Rights Commission (NHRC) recorded
14,231 i.e. 4.33 persons died in police and judicial custody in India. This includes
1,504 deaths in police custody and 12,727 deaths in judicial custody from 2001-
2002 to 2009-2010.1 A large majority of these deaths are a direct consequence of
torture in custody. These deaths reflect only a fraction of the problem with torture
and custodial deaths in India. Not all the cases of deaths in police and prison
custody are reported to the NHRC. The NHRC does not have jurisdiction over
the armed forces under Section 19 of the Human Rights Protection Act. Further,
the NHRC does not record statistics of torture not resulting into death. Torture
remains endemic, institutionalised and central to the administration of justice
and counter-terrorism measures. India has demonstrated no political will to end
torture.
Torture and deaths in police custody: Maharashtra tops the chart
The NHRC recorded 1504 deaths in police custody during 2001-2010 which
includes 165 deaths in 2001-2002;2 183 deaths in 2002-2003;3 162 deaths in
2003-2004;4 136 deaths in 2004-2005;5 139 deaths in 2005-2006;6 119 deaths in
2006-2007;7 187 deaths in 2007-2008;8 142 deaths in 2008-2009; 124 deaths in
2009-2010 and 147 deaths in 2010-2011.9
The Asian Centre for Human Rights (ACHR) has consistently underlined that
about 99.99% of deaths in police custody can be ascribed to torture and occur
within 48 hours of the victims being taken into custody.
Maharashtra recorded the highest number of deaths in police custody with 250
deaths; followed by Uttar Pradesh (174); Gujarat (134); Andhra Pradesh (109);
West Bengal (98); Tamil Nadu (95); Assam (84); Karnataka (67); Punjab (57);
Madhya Pradesh (55); Haryana (45); Bihar (44); Kerala (42); Jharkhand (41);
Rajasthan (38); Orissa (34); Delhi (30); Chhattisgarh (24); Uttarakhand (20);
Meghalaya (17); Arunachal Pradesh (10); Tripura (8); Jammu and Kashmir (6);
Himachal Pradesh (5); Goa, Chandigarh and Pondicherry (3 each); Manipur,
Mizoram and Nagaland (2 each); and Sikkim and Dadra and Nagar Haveli
(1 each).
According to provisional 2011 census, Maharashtra has a total population of 112
million in comparison to 199 million in Uttar Pradesh. That more people were
killed in police custody in Maharashtra than Uttar Pradesh shows that torture is
more rampant in Maharashtra.

Torture and deaths in judicial custody: Uttar Pradesh tops the chart
The NHRC also recorded 12,727 deaths in judicial custody from 2001-2002
to 2009-10.11 These included 1,140 cases in 2001-2002;12 1,157 cases in 2002-
2003;13 1,300 cases in 2003-2004;14 1,357 cases in 2004-2005;15 1,591 cases in
2005-2006;16 1,477 cases in 2006-2007;17 1,789 cases in 2007-2008;18 1,532 cases
in 2008-2009; 1,389 cases in 2009-2010 upto 28 February 2010.19 In other words,
an average of 1,416 persons died year during this period.20
A large number of deaths in judicial custody also take place as a result of torture,
denial of medical facilities and inhuman prison conditions that amount to torture,
inhuman or degrading treatment. In August 2010, Mr B.D. Sharma, Additional
Director General of Prisons of West Bengal reported in his investigation into a
torture case underlined that “it was becoming a practice in the jail to punish
prisoners by physically assaulting them in gross violation of human rights.
Uttar Pradesh recorded the highest number of deaths in judicial custody with 2171
deaths, followed by Bihar (1512); Maharashtra (1176); Andhra Pradesh (1037);
Tamil Nadu (744); Punjab (739); West Bengal (601); Jharkhand (541); Madhya
Pradesh (520); Karnataka (496); Rajasthan (491); Gujarat (458); Haryana
(431); Orissa (416); Kerala (402); Chhattisgarh (351); Delhi (224); Assam
(165); Uttarakhand (91); Himachal Pradesh (29); Tripura (26); Meghalaya (24);
Chandigarh (23); Goa (18); Arunachal Pradesh (9); Pondicherry (8); Jammu and
Kashmir and Nagaland (6 each); Mizoram (4); Sikkim and Andaman and Nicober
Island (3 each); and Manipur and Dadra and Nagar Haveli (1 each).

NHRC data does not reflect the true picture:

The data of the NHRC does not reflect the actual extent of custodial death in
India. As stated above not all custodial deaths are reported to the NHRC. For
example, the Asian Centre for Human Rights filed a complaint with regard to the
custodial death of Jumchi Nguso (35 years) as a result of torture at the Naharlagun
police station in Papumpare district of Arunachal Pradesh on 15 July 2010 (NHRC
Case No. 23/2/10/2010-AD). The NHRC registered the case and closed it after the
State government awarded compensation of Rs 5 lakhs. Yet the NHRC’s official
statistics for 2010-2011 show that there was no custodial death during the year in
Arunachal Pradesh. Similarly, ACHR filed two complaints of custodial deaths
from Meghalaya i.e. death of Dilip Dohkrud (35 years) due to alleged torture at
the Bholaganj Police Check Post under Shella Police Station in East Khasi Hills
district on 27 January 2010 (NHRC Case No. 7/15/2/2010/UC/M5) and the death
of Dexstarwise Bamon (28 years) at the Ladrymbai Police lock-up in Jowai on 26
January 2010 (NHRC Case No. 6/15/3/2010-AD). However, the official statistics
record only one death during April 2009 to March 2010.
Worst, the number of deaths in police custody from conflict afflicted states like
Jammu and Kashmir and Manipur do not reflect the gravity of the situation.
The NHRC registered only six deaths in police custody in Jammu and
Kashmirrecorded from Manipur during the same period. This is despite the fact
that on
31 March 2011 Jammu and Kashmir Chief Minister Omar Abdullah in a written
reply to a question in the Legislative Council stated that 341 persons had died in
police custody in the state since 1990.23
Furthermore records of custodial deaths do not include deaths in the custody of
the armed forces. The NHRC has been denied a mandate to investigate human
rights violations by the armed forces under Section 19 of the Protection of Human
Rights Act, 1993 as amended in 2006. This is despite the fact that currently, Indo-
Tibetan Border Police (ITBP), deployed along Indo-China border, and Sashastra
Seema Bal (SSB) have the powers of search, seizure and arrest. Further, the
NHRC directives on reporting incidents of custodial deaths do not apply to the
armed forces. In the last nine years, the NHRC recorded only 25 cases of death in
the custody of the military/paramilitary forces.

Torture in police custody

I. Patterns and practices of torture in police custody
Torture remained widespread and integral to law enforcement. Deaths in police
custody are reported at regular intervals. These deaths were often passed off as
suicides, sudden medical complications, self-inflicted injuries and natural deaths.
For example, out of the total 84 cases of death in police custody recorded by the
National Crime Records Bureau (NCRB) of the Ministry of Home Affairs during
2009, deaths in 80 cases were attributed to hospitalisation/treatment (9 cases);
accidents (4 cases); by mob attack/riot (2 cases); by other criminals (3 cases);
by suicide (21 cases); while escaping from custody (8 cases); and illness/natural
death (33 cases).28
Torture is used to extract confession, demand bribes, settle personal scores etc.
Terror suspects are at increased risks of torture given the immense pressure on the
police to solve the crimes.
A. Custodial deaths
During 2010-2011, the highest number of death in police custody was reported
from
Maharashtra with 31 cases followed by Uttar Pradesh (15); Andhra Pradesh (14);
Gujarat (9); Assam and Orissa (7 each); Bihar, Punjab, Tamil Nadu and Jharkhand
(6 each); Karnataka, Madhya Pradesh and West Bengal (5 each); Uttarakhand (4);
Delhi and Haryana (3 each); Goa, Jammu and Kashmir, Kerala, Manipur, Mizoram
and Rajasthan (2 each); and Nagaland, Tripura and Chhattisgarh (1 each).
i.

ii. Custodial death through torture: alleged suicide

In a number of cases the police claimed that the accused committed suicide in
police detention. However, the mystery over as to what had led them to take the
extreme act and how they commit suicide with strange objects like shoe laces,
blankets, jeans, etc are never answered. How the victims had access to the means
for committing suicide like poisons, drugs, electric cables, etc in custody remained
unknown.
iii. Custodial death through torture: alleged medical complications
A large number of victims who are hale and healthy prior to their arrest suddenly
develop medical complications once they are taken into custody and die in police
custody. In reality, the victims are subjected to torture and murdered. With the
acquiescence of the medical fraternity, the police are able to get away by
describing
the death as medical complications.
II. Custodial torture of women
Torture of women in custody including rape is reported regularly in India.
Custodial rape remains one of the worst forms of torture perpetrated on women
by law enforcement personnel.
A. Torture including custodial deaths of women
Women are particularly vulnerable in the custody of the security forces due to
their gender. The gender based violence include torture resulting in the death of
the victims in custody.
Torture in judicial custody
i. Torture in prison custody
a. Deaths in judicial custody due to alleged torture
Prisoners continued to be unsafe in judicial custody. Torture remained a common
practice. During 2010, Asian Centre for Human Rights documented a number of
deaths in judicial custody due to alleged torture.
On 12 January 2010, undertrial prisoner Mr. Krishna Kumar died due to alleged
torture at Bhondsi Jail, Gurgaon in Haryana. The jail officials claimed Mr Kumar
died due to medical complications. However, the deceased’s family alleged that
they saw injury marks on Mr Kumar’s back suggesting torture.259
On 9 June 2010, undertrial prisoner Maruti Chaudhary (34 years) died due to
alleged torture by jail officials at Ara Jail in Bhojpur district of Bihar. The deceased
was arrested on 1 June 2010 from Ara railway station for travelling without ticket
and was detained in the Ara jail. Deceased’s father and the inmates of the jail
alleged that the deceased was tortured to death by the jail officials.260
On 8 July 2010, Anwar Mondal (40 years), an undertrial lodged at the Bongaon
Subsidiary Jail in North 24 Parganas district, West Bengal died due alleged torture
by the jail officials. The deceased was sent to the jail on 5 July 2010. On 6 July
2010, the deceased’s son visited the jail and was told by his father that the jailor
had allegedly demanded Rs 3000 from him and subjected to physical assault by
inmates at the behest of the jailor.261
On 11 July 2010, an undertrial identified as Vikramjit Singh Vicky died due to
alleged torture in Central Jail, Bathinda, Punjab. He was lodged in the jail in
connection with a drugs smuggling case. The deceased was found dead inside his
cell under mysterious circumstances on the night of 11 July 2010. The deceased’s
family members alleged that he died due to torture.262
On 22 July 2010, a Dalit prisoner identified as Mangulu Jani (35 years) died due
to alleged torture at the Kotpad Jail in Koraput district, Orissa. The doctors at the
hospital allegedly declared that the deceased died of hanging without conducting
the post-mortem. On 24 August 2010, an under-trial prisoner identified as Suresh
Nahak (45 years)
died under mysterious circumstances in Asika Sub-Jail in Ganjam district, Orissa.
He was sent to the Sub-Jail in 2007. The deceased reportedly had several injury
marks in his body including in the neck,264 suggesting torture.
On 25 July 2010, undertrial Gursewak Singh (43 years) died due to alleged torture
in the Central Jail, Bhatinda, Punjab. The jail authorities claimed the deceased
had suffered a massive cardiac arrest and died while being taken to the Civil
Hospital. However, the deceased’s family and other inmates of the jail alleged that
Gursewak Singh was subjected to torture which resulted in his death.265
On 26 September 2010, Mofik Sk (42 years), son of Late Firoj Sk, an undertrial
lodged at the Kandi Correctional Home in Murshidabad district, West Bengal
died due to alleged torture in the jail. The deceased’s family members alleged
that he was not suffering from any disease at the time of arrest and he died due to
torture.266
On 27 September 2010, undertrial Mr. Pradip Mohapatra (33 years) died due to
alleged torture in Dhenkanal Jail in Orissa. The jail officials claimed the deceased
died due to excessive intake of alcohol, while the deceased’s family members
alleged that the death was due to torture by the jail officials as there were several
injury marks on his bodies.267
On 8 October 2010, Kumudesh (23 years), an undertrial lodged at District Jail
Etawah, Uttar Pradesh, died due to alleged torture at the jail hospital. The jail
authority claimed the deceased suddenly fell ill and was admitted to the hospital
where he died. However, the local residents alleged that the deceased died due to
torture in the jail.268
In another incident on 8 October 2010, Matuku Khagri (50 years), an undertrial
prisoner, died due to alleged torture at Rourkela Jail in Sundergarh district of
Orissa. The jail authorities claimed the deceased suddenly fell ill and was rushed to
hospital where he died due to heart attack. However, the family members alleged
that the deceased was subjected to torture in the jail, which led to the death.269
Many prisoners died under mysterious circumstances in judicial custody. Most of
these deaths are leveled as suicide by the jail authorities.
 SELECTED NHRC GUIDELINES

1. On Custodial Deaths/Rapes

a) Letter to all Chief Secretaries on the reporting of custodial deaths within 24 hours.

No. 66/SG/NHRC/93

National Human Rights Commission

Sardar Patel Bhavan

New Delhi

14 December, 1993

From:

R.V. Pillai, Secretary General

To:

Chief Secretaries of all States and Union Territories

Sir/Madam,

The National Human Rights Commission at its meeting held on the 6th instant discussed the
problems of custodial deaths and custodial rapes. In view of the rising number of incidents and
reported attempts to suppress or present a different picture of these incidents with the lapse of
time, the Commission has taken a view that a direction should be issued forthwith to the District
Magistrates and Superintendents of Police of every district that they should report to the
Secretary General of the Commission about such incidents within 24 hours of occurrence or of
these officers having come to know about such incidents. Failure to report promptly would give
rise to presumption that there was an attempt to suppress the incident.

2. It is accordingly requested that the District Magistrates/Superintendents of Police may be

given suitable instructions in this regard so as to ensure prompt communication of incidents of
custodial deaths/custodial rapes to the undersigned.

Yours faithfully,

Sd/-

(R.V. Pillai)
b) Letter to all Chief Secretaries clarifying that not only deaths in police custody but also
deaths in judicial custody be reported.

R. V. Pillai F.No. 40/3/95-LD

Secretary General National Human Rights Commission

June 21, 1995

To

Chief Secretaries of all States and Union Territories

Sir/Madam,

Vide letter No.66/SG/NHRC/93 dt. December 14, 1993, you were requested to give suitable
instructions to DMs/SPs to ensure prompt communication of incidents of custodial
deaths/custodial rapes.

2. A perusal of the reports received from DMs/SPs in pursuance of the above mentioned
communication reveals that reports are received in the Commission from some of the States,
only on deaths in police custody. The objective of the Commission is to collect information in
respect of custodial deaths in police as well as judicial custody. May I, therefore, request you to
have instructions sent to all concerned to see that deaths in judicial custody are also reported to
the Commission within the time frame indicated in my letter of December 14, 1993.

Yours faithfully,

Sd/-

(R. V. Pillai)
c) Letter to Chief Ministers of States on the video filming of post-mortem examinations in
cases of custodial deaths.

Justice Ranganath Misra August 10,1995

Chairperson

My dear Chief Minister,

The National Human Rights Commission soon after its constitution in October, 1993, called
upon the law and order agencies at the district level throughout the country to report matters
relating to custodial death and custodial rape within 24 hours of occurrence. Since then
ordinarily reports of such incidents have been coming to the Commission through the official
district agencies. The Commission is deeply disturbed over the rising incidents of death in police
lock-up and jails. Scrutiny of the reports in respect of all these custodial deaths by the
Commission very often shows that the post-mortem in many cases has not been done properly.
Usually the reports are drawn up casually and do not at all help in the forming of an opinion as
to the cause of death. The Commission has formed an impression that a systematic attempt is
being made to suppress the truth and the report is merely the police version of the incident.

The post-mortem report was intended to be the most valuable record and considerable
importance was being placed on this document in drawing conclusions about the death.

The Commission is of a prima-facie view that the local doctor succumbs to police pressure
which leads to distortion of the facts. The Commission would like that all post-mortem
examinations done in respect of deaths in police custody and in jails should be video-filmed and
cassettes be sent to the Commission along with the post-mortem report. The Commission is
alive to the fact that the process of video-filming will involve extra cost but you would agree that
human life is more valuable than the cost of video-filming and such occasions should be very
limited.

We would be happy if you would be good enough to immediately sensitise the higher officials in
your state police to introduce video-filming of post mortem examination with effect from 1st
October, 1995.

We look forward for your response within three weeks.

With regards,

Yours sincerely,

Sd/-

(Ranganath Misra)
To

Chief Ministers of all States, Pondicherry & the National Capital Territory of Delhi / Governors of
those States under the President’s rule.

d) Letter to Chief Ministers/Administrators of all States/Union Territores with a request to

adopt the Model Autopsy form and the additional procedure for inquest.

Justice M.N. Venkatachaliah No. NHRC/ID/PM/96/57

Chairperson National Human Rights Commission
(Former Chief Justice of India)

March 27, 1997

Dear Chief Minister,

May I invite your kind attention to a matter which NHRC considers of some moment in its steps
to deal with custodial deaths? The Commission on the 14 th December, 1993 had issued a
general circular requiring all the District Magistrates and the Superintendents of Police to report
to the Commission, incidents relating to custodial deaths and rapes within 24 hours of their
occurrence. A number of instances have come to the Commission's notice where the post-
mortem reports appear to be doctored due to influence/pressure to protect the interest of the
police/jail officials. In some cases it was found that the post-mortem examination was not
carried out properly and in others, inordinate delays in their writing or collecting. As there is
hardly any outside independent evidence in cases of custodial violence, the fate of the cases
would depend entirely on the observations recorded and the opinion given by the doctor in the
post-mortem report. If post-mortem examination is not thoroughly done or manipulated to suit
vested interests, then the offender cannot be brought to book and this would result in travesty of
justice and serious violation of human rights in custody would go on with impunity.

With a view to preventing such frauds, the Commission recommended to all the States to video-
film the post-mortem examination and send the cassettes to the Commission.

It was felt that the Autopsy Report forms now in use in the various States, are not
comprehensive and, therefore, do not serve the purpose and also give scope for doubt and
manipulation. The Commission, therefore, decided to revise the autopsy-form to plug the
loopholes and to make it more incisive and purposeful.
The Commission, after ascertaining the views of the States and discussing with the experts in
the field and taking into consideration, though not entirely adopting, the U.N. Model Autopsy
protocol, has prepared a Model Autopsy form enclosed as Annexure-I.1

In this connection, it was felt that some incidental improvements are also called for in regard to
the conduct of inquests. For proper assessment of “Time since death” or ‘the time of death’,
determination of temperature changes and development of Rigor Mortis at the time of first
examination at the scene is essential. This can conveniently be done by following some easily
understandable and implementable procedure. The procedure to be followed by those in charge
of inquest, is indicated in Annexure-II2 to this letter. This is a small but important addition to the
inquest procedure.

The Commission recommends your Government to prescribe the Model Autopsy Form
(Annexure-I) and the additional procedure for inquest as indicated in Annexure-II, to be followed
in your State with immediate effect.

I shall look forward to your kind and favourable response.

Yours sincerely,

Sd/-

(M.N. Venkatachaliah)

To

Chief Ministers of all States/Union Territories.

1 Available at http://www.nhrc.nic.in (Pathway for the search: Homepage – Important Instructions – Custodial
deaths/Rape).
2 Available at http://www.nhrc.nic.in (Pathway for the search: Homepage – Important Instructions – Custodial
deaths/Rape).
2. Revised Guidelines/Procedures to be followed in dealing with deaths occurring in
encounter deaths

The guidelines issued by the Commission in respect of procedures to be followed by the State
Govts. in dealing with deaths occurring in encounters with the police were circulated to all Chief
Secretaries of States and Administrators of Union Territories on 29.3.1997.

Subsequently on 2.12.2003, revised guidelines of the Commission have been issued and it was
emphasised that the States must send intimation to the Commission of all cases of deaths
arising out of police encounters. The Commission also recommended the modified procedure to
be followed by State Govts. in all cases of deaths, in the course of police action, and it was
made clear that where the police officer belonging to the same police station are members of
the encounter party, whose action resulted in deaths, such cases be handed over for
investigation to some other independent investigating agency, such as State CBCID, and
whenever a specific complaint is made against the police alleging commission of a criminal act
on their part, which makes out a cognisable case of culpable homicide, an FIR to this effect
must be registered under appropriate sections of the I.P.C. Such case shall invariably be
investigated by the State CBCID. A Magisterial Inquiry must invariably be held in all cases of
deaths which occur in the course of police action. The next of kin of the deceased must
invariably be associated in such inquiry.

All the Chief Ministers and Administrators have been directed to send a six monthly statement of
all cases of deaths in police action in the States/ UTs through the Director General of Police to
the Commission by the 15th Day of January and July respectively in the proforma devised for
the purpose.

Justice A.S. Anand

Chairperson

(Former Chief Justice of India) 2 nd December, 2003

Dear Chief Minister,

Death during the course of a police action is always a cause of concern to a civil society. It
attracts criticism from all quarters like Media, the general public and the NGO sector.

The police does not have a right to take away the life of a person. If, by his act, the policeman
kills a person, he commits an offence of culpable homicide or not amounting to murder, unless it
is established that such killing was not an offence under the law. Under the scheme of criminal
law prevailing in India, it would not be an offence if the death is caused in exercise of right of
private defence. Another provision under which the police officer can justify causing the death of
a person, is section 46 of the Criminal Procedure Code. This provision authorizes the police to
use reasonable force, even extending up to the causing of death, if found necessary to arrest
the person accused of an offence punishable with death or imprisonment for life. Thus, it is
evident that death caused in an encounter if not justified would amount to an offence of culpable
homicide.

The Commission while dealing with complaint 234 (1 to 6)/ 93-94 and taking note of grave
human rights issue involved in alleged encounter deaths, decided to recommend procedure to
be followed in the cases of encounter death to all the states. Accordingly, Hon’ble Justice Shri
M.N. Venkatachaliah, the then Chairperson NHRC, wrote a letter dated 29/3/1997 to all the
Chief Ministers recommending the procedure to be followed by the states in “cases of encounter
deaths” (copy enclosed for ready reference).

Experience of the Commission in the past six years in the matters of encounter deaths has not
been encouraging. The Commission finds that most of the states are not following the
guidelines issued by it in the true sprit. It is of the opinion that in order to bring in transparency
and accountability of public servants, the existing guidelines require some modifications.

Though under the existing guidelines, it is implicit that the States must send intimation to the
Commission of all cases of deaths arising out of police encounters, yet some States do not send
intimation on the pretext that there is no such specific direction. As a result, authentic statistics
of deaths occurring in various states as a result of police action are not readily available in the
Commission. The Commission is of the view that these statistics are necessary for effective
protection of human rights in exercise of the discharge of its duties.

On a careful consideration of the whole matter, the Commission recommends following modified
procedure to be followed by the State Governments in all cases of deaths in the course of police
action :-

A. When the police officer in charge of a Police Station receives information about the deaths in
an encounter between the Police party and others, he shall enter that information in the
appropriate register.

B. Where the police officers belonging to the same Police Station are members of the
encounter party, whose action resulted in deaths, it is desirable that such cases are made
over for investigation to some other independent investigating agency, such as State
CBCID.

C. Whenever a specific complaint is made against the police alleging commission of a criminal
act on their part, which makes out a cognisable case of culpable homicide, an FIR to this
effect must be registered under appropriate sections of the I.P.C. Such case shall invariably
be investigated by State CBCID.
D. A Magisterial Inquiry must invariably be held in all cases of death which occur in the course
of police action. The next of kin of the deceased must invariably be associated in such
inquiry.

E. Prompt prosecution and disciplinary action must be initiated against all delinquent officers
found guilty in the magisterial enquiry/ police investigation.

F. Question of granting of compensation to the dependents of the deceased would depend

upon the facts and circumstances of each case.

G. No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned

officers soon after the occurrence. It must be ensured at all costs that such rewards are
given/ recommended only when the gallantry of the concerned officer is established beyond
doubt.

H. A six monthly statement of all cases of deaths in police action in the State shall be sent by
the Director General of Police to the Commission, so as to reach its office by the 15th day of
January and July respectively. The statement may be sent in the following format along with
post-mortem reports and inquest reports, wherever available and also the inquiry reports:-

1. Date and place of occurrence

2. Police Station, District.

3. Circumstances leading to deaths:

i. Self defence in encounter

ii. In the course of dispersal of unlawful assembly

iii. In the course of effecting arrest.

4. Brief facts of the incident

5. Criminal Case No.

6. Investigating Agency

7. Findings of the magisterial Inquiry/enquiry by Senior Officers:

a. disclosing in particular names and designation of police officials, if found responsible

for the death; and

b. whether use of force was justified and action taken was lawful.

It is requested that the concerned authorities of the State are given appropriate instructions in
this regard so that these guidelines are adhered to both in letter and in spirit.

With regards,

Yours sincerely,
 Sd/-

(A.S. Anand)

To

All Chief Ministers of State

THE HINDU

Updated: November 11, 2015 23:52 IST

Maharashtra leads in number of custodial death cases

There has not been a single conviction in the past 15 years: HC

Pulling up the State government and investigating agencies for the apathy in dealing with custodial death
cases in Maharashtra, the Bombay High Court recently remarked that the State ranked the highest in
custodial deaths and there had not been a single conviction in any case in the past 15 years. The court said
punishment for the guilty would act as a deterrent.

From 1999 to 2014, though there were 106 custodial deaths, only 13 FIRs were registered. Five
policemen had been charge-sheeted and the conviction rate is zero.

Khwaja Yunus (27), a software engineer who came from Dubai in December 2002 to visit his family and
died allegedly in police custody is a case in point. He was arrested by the Mumbai police for his alleged
involvement in the Ghatkopar blast that claimed two lives and in which over 50 people were injured.

More than a decade since Yunus’s death, trial in the case against police officers is yet to start.
Yunus was holidaying at his native place at Parbhani when he was picked up by the Ghatkopar
police and remanded in police custody under the Prevention of Terrorism Act (POTA) in 2003.

After three days of vomiting blood, Yunus is believed to have died in custody. The police version
is that he ran away while he was being taken from Mumbai to Aurangabad in a jeep.

His parents filed a petition in the Bombay High Court, seeking a CBI inquiry and compensation.
In 2004, an FIR was filed against one police inspector and three constables who were charged
with conspiracy, destruction of evidence, and murder.

The case was transferred to the Criminal Investigation Department (CID) Nashik, which filed a
charge sheet in 2009. The trial is yet to begin in the case.

In 2012, the Bombay High Court granted Rs.20 lakh to Yunus’s family but the kin wanted the
State’s sanction to prosecute many high-ranking officers involved in his death.

His mother, Asiya Begum, 68, has been fighting a lone battle to get justice for her deceased son.
Two special public prosecutors, R.B. Mokashi and Yug Chaudhary, appointed to represent police
officials have quit citing personal reasons.

After several rounds to Mantralaya, letters to the Chief Minister and scores of Right to
Information pleas to know the stage of investigation, the State appointed another SPP, Dhiraj
Mirajkar, and the trial is slated to begin from November 23, 2015.
Custodial death cases in Mumbai

Aniket Khicchi (20), son of vegetable vendors at Kurla, was picked up by the Vanrai police when
he was out with his friends for a movie. Khicchi had charges of robbery against him for allegedly
picking up someone’s laptop from Goregaon Sports Complex. His father pleaded for a special
public prosecutor to be appointed to look into his only son’s death. The trial is going on at the
Sessions Court and is in the final stage.

Akash Kharde (23) was an accused in a murder case which took place in April 2014 and
surrendered to the Samta Nagar police and died after three days in police custody. Although
Akash’s brother stated he was seen limping, was brutally beaten up and assaulted by the police,
the police claimed he had fallen in the lock-up and died. The State had suspended four constables
and one assistant police inspector in connection with the case.

Agnelo Valdaris (25), a resident of BPT Colony, was arrested by the government Railway Police
at Wadala in April 2014 for allegedly snatching a gold chain from a woman on a train. While the
police say Valdaris was run over by a train while trying to escape, his father claims he died due
to police torture while in custody. The Central Bureau of Investigation still seeks permission
from the head office to register a charge sheet against guilty police officials.

THE INDIAN EXPRESS

111 deaths in police custody in eight months: Govt to

Lok Sabha
A total of 25,357 cases were registered under police category which included 111 deaths in
police custody, 330 cases of custodial torture and 24,916 in others.

A staggering 111 deaths have taken place in the police lockups during the last
eight months in the country, while 330 cases of torture by police have also
been reported during the period.
The data presented by Minister of State for Home Affairs Kiren Rijiju in Lok
Sabha, in response to a written question, shows 24,916 cases of atrocities by
police have been reported from country between April 1 and November 30,
2015.
The data has been sourced from National Human Rights Commission, Rijiju
told the House adding that it shows “mixed trend”.
According to the data, a total of 25,357 cases were registered under police
category which included 111 deaths in police custody, 330 cases of custodial
torture and 24,916 in others.

Custodial deaths: Bombay HC asks state to explain delay in

filing report
Published:Apr 12, 2016, 1:39

Committee formed to find solutions to prevent such deaths was supposed to file its
report in three months
THE Bombay High Court Monday asked the state government to inform it why a
two-member committee constituted to find solutions to prevent custodial deaths in
Maharashtra was taking time to file its report. The committee, constituted in
December, was supposed to file its report in three months. “On the next date of
hearing, inform us why the committee is taking time and who are the two members
in the committee,” said Justice A S Oka. - See more at: The court also questioned
the government on the progress made in installing CCTV cameras in police
stations. “Tenders have been issued for installing CCTV cameras in 25 police
stations in the city as part of a pilot project. However, CCTV cameras have only
been installed in Nagapada police station till date,” said additional public
prosecutor Mankunwar Deshmukh. Pointing out that this work was to be
completed in a month as per the government’s assurance at the last hearing on
February 24, the HC asked the state to file a reply, specifying the progress made in
the installation of CCTV cameras. A division bench headed by Justice Oka was
hearing a petition filed by Valdaris’s father. The 24-year-old Agnelo Valdaris, son
of Leonard Valdaris, was allegedly killed in the custody of the Wadala Railway
Police for stealing a gold chain and a ring in April 2014. The police had claimed
that Valdaris attempted to flee a few days after his arrest and was run over by a
local train while crossing a track, but his father had alleged that Valdaris died in
police custody and sought a CBI probe. The three co-accused in the case, including
a minor, had also became co-petitioners in the plea filed by Valdaris’s father and
alleged that they had been subjected to torture and sexual abuse in custody. The
HC had transferred the case to the CBI last year.

HRC report: 61 custodial deaths in Gujarat

in 2011-12
Of the total deaths in police or judicial custody, 51 were cases of natural deaths,
while seven were suicides and three were unnatural or doubtful deaths.

Published:March 26, 2016,

There were a total 61 custodial deaths in Gujarat in the year 2011-12, according to a
report submitted by the State Human Rights Commission (GSHRC) in Legislative
Assembly.
Of the total deaths in police or judicial custody, 51 were cases of natural deaths, while
seven were suicides and three were unnatural or doubtful deaths, GSHRC said in its
annual report for 2011-12 which was tabled in the House on Tuesday.
Eight of the total deaths were reported in police custody, while 53 were reported in
judicial custody, it said.

24 of the deaths were reported in Ahmedabad city alone. One death out of the 24 has
been shown as unnatural or doubtful in the SHRC’s annual report.
Vadodara city stood second with 10 custodial deaths. However, no unnatural death
was recorded in that city.
In Junagadh city four custodial deaths were recorded.
Apart from Ahmedabad city, where one unnatural death was recorded, the other two
unnatural or doubtful deaths in police custody took place in Rajkot city and Dahod.
Seven cases of suicides in custody were recorded one each in Ahmedabad rural,
Mehasana, Rajkot rural, Junagadh, Amreli, Valsad, and Navsari districts.
The report is silent on the steps taken by the commission on unnatural or doubtful
deaths.
The report said 2,989 petition were received seeking SHRC’s intervention in the year
2011-12 against 3,077 in 2010-11, and 2,992 petitions in 2009-10.
The report lists many cases where due to its intervention, authorities have acted in
favour of petitioners and resolved their problems.
The report also lists cases where SHRC had taken suo motu action based on
newspaper reports.
 RELATED ARTICLE

 111 deaths in police custody in eight months: Govt to Lok Sabha

 Pune topped police custody deaths in 2011
 Over 1,500 died in custody: NHRC
 Human Rights Commission reports violations by state police
 Records of custodial deaths paint the good image of state police
 111 deaths in police custody in eight months: Govt to Lok Sabha
 Over 1,500 died in custody: NHRC
 Human Rights Commission reports violations by state police
 Records of custodial deaths paint the good image of state police

AL-JAZEERA ENGLISH

Dying while in police custody in India

Relatives of inmates killed while in police custody demand justice and
investigation into the deaths.
Mohd Abdul Alam | 04 Aug 2015 07:30 GMT | Asia, India, Human Rights, Law

In April 2015, Viqar Ahmed and four others were shot and killed by police in the Indian
city of Hyderabad, while being transported from prison to court.

Viqar's father, Mohammed Ahmed, believes the police murdered his son and planted
fake evidence to make it appear as though there had been a confrontation.
He spoke grimly about what he describes as the dim chances of finding justice for his
son's murder.

"I feel the government was interested in the encounter, while the police was eagerly
waiting for an opportunity to kill my son," he said, almost sobbing. "With such hatred in
the officials, how can I expect any justice for my son's murder?"

Between 2007 and 2012, nearly 12,000 people died while in police or prison custody in
India, with 3,532 reported cases of custodial torture.

Prosecutors and police officials involved in the investigation of the deaths repeatedly
declined Al Jazeera's requests for comment.

Viqar was first arrested in 2010, accused of forming a militant group called Tehreek-e-
Galba-e-Islami that targeted police officers.

His bereaved father vehemently denies the accusations.

"Policemen were arresting boys for the Mecca Masjid bombing case, and when my son
found out his name was being mentioned in the police station, he tried to leave
Hyderabad," Mohammed, Viqar's father told Al Jazeera.

In 2007, bombs planted at a mosque in Hyderabad killed 11 people, and police killed
five more after opening fire in the immediate aftermath.

BBC NEWS

India custody deaths 'top 1,500' in a year,

says report

21 December 2011

More than 1,500 people have died in official custody in India in the
past year, according to data released by the country's Human Rights
Commission.
Most of the deaths in prison and police custody - 331 - were in the
northern state of Uttar Pradesh.

Other states where more than 100 people had died in custody were
Andhra Pradesh, Bihar and Maharashtra.

Rights groups say a large number of such deaths happen because of

torture in custody, claims officials reject.

The government routinely attributes deaths in custody to illness,

attempted escape, suicide and accidents.

An unnamed commission official told The Indian Express newspaper

that they had collected the data on "the basis of individual complaints
as well as those sent by prison authorities".

After Uttar Pradesh, Bihar (136) and Maharasthra (130) recorded most
deaths in custody.

Twenty-two so-called "custodial deaths" were also reported from the

capital, Delhi.

The deaths were recorded between April 2010 and March 2011.

In 2008, a Delhi-based rights group reported that that 7,468 people -

that is four people every day - had died in prison or police custody
since 2002.

THE TIMES OF INDIA

11,820 custodial deaths in five years

TNN | Nov 24, 2013, 02.41 AM IST
NEW DELHI: The Supreme Court has viewed seriously ineffective
implementation of series of directions to curb custodial deaths and sought
explanation from the Centre and states after being informed that nearly
12,000 persons died — either in jail or in police stations — in last five years.

A bench of Justices S S Nijjar and F M I Kalifulla was pained when amicus

curiae A M Singhvi moved an application seeking implementation of 15 more
guidelines to clamp down on custodial excesses, which has resulted in the
death of 11,820 and 3,532 reported cases of custodial torture between 2007
and 2012.

Singhvi said, "Despite repeated judgments and directions passed by the

Supreme Court in the writ petition D K Basu, which has been pending for last
27 years, laying down guidelines for prevention of custodial violence and
deaths, implementation by various states appears to be extremely lax."

He listed eight judgments and orders of the apex court, last of which was
passed on May 7, 2003, and said another gory dimension to "the senseless
exhibition of superiority and physical power over the one who is already
overpowered" had been added by the spurt in custodial rape cases.

Singhvi stated that "the National Human Rights Commission registered 39

cases of rape in judicial and police custody from 2006 to 2010". Flagrant
violation of statutory restraint and scant fear of punishment was exhibited in
open when Punjab policemen assaulted a woman, picked her brother and
father and beaten up, he said, adding that the apex court has taken suo motu
cognizance of the incident.

The low figure of custodial torture was explained by Singhvi. He said, "Unlike
custodial deaths, the police are not mandatorily required to report cases of
torture which do not result in deaths to NHRC. Hence number of reported
cases of police torture is a fraction of the actual incidents."

He said Maharashtra reported maximum number of custodial deaths in the

country. "Number of custodial deaths in Maharashtra in 2007, 2008 and 2009
are 21, 25 and 23, respectively. The state government in its reply has put the
figures for the three years at 20, 29 and 23 (a total of 72). It is noteworthy that
many of the custodial deaths admitted to by Maharashtra are women."
He said though the total number of cases admitted by the state was 72,
criminal action against perpetrators of custodial death had been initiated only
in four cases and the state did not inform about the outcome of such criminal
action initiated against the accused policemen.

He said the NHRC in 2011-12 registered 94,985 cases of human rights

violations across the country. "Nearly a half, 46,187, were registered from
Uttar Pradesh followed by Delhi (7,988) and Haryana 6,921). Even though
NHRC is located in Delhi, it is necessary that Delhi should have its own state
human rights commission (SHRC)," Singhvi said.

"Mizoram, Meghalaya, Tripura and Nagaland are all disturbed states with
problems of insurgency, foreign immigration, tribal warfare and ethnic
violence. Custodial violence and custodial deaths are rampant in each of
these states. In such disturbed regions, it is all the more necessary to have
proper authority to keep check on and redress human rights violations and
therefore the need to constitute SHRCs," he said.