CHAPTER-1

INTRODUCTION

“Liberty is the most cherished possession of man”1

India is a secular, socialist, sovereign, democratic republic. Every attribute of

Indian republic is bed-rocked on human rights-the sovereignty of the people
over the entire resources of the nation, the secular liberation which interdicted
discrimination against individuals and groups on religious grounds, the
socialist harvest of economic, cultural and other rights. These are meaningful
implicit in the system of the republic and made more explicit in the preamble,
part III and part IV, which have been called the conscience of the Constitution.

In polity, i.e. in a good form of democracy, the role of the investigator, the
prosecutor, the adjudicator and the executor cannot be combined to prevent the
likelihood of institutional bias in one person or institution.2 For this the
distinction and separation between the three agencies is a must. Each has its
own work to do. Criminal justice comes out of their togetherness.

The enforcement of rule of law makes possible the administration of guiding

principles of criminal justice. The rule of law requires an honest band of
public servants who are not only motivated by its lofty concepts but are
prepared to carry out behest of the law at any cost. The justice system is an
organism and an organism means a form of life composed of mutually
dependent parts that maintain various vital processes. Criminal justice system,
as it is today consists of many mutually dependent parts, sub-systems and the
police, a sub-system is one of them that investigate crimes and detect
criminals.

A human being is the real wealth of any nation and for his development there
is always a need to create an enabling environment for enhancing his
achievements, capabilities, freedoms and rights. In this context the issue of

1
R.S.Verma, Law Relating to Custodial Death and Human Rights (2001) p.1.
2
Dr. R.Thilaraj, Human Rights and Criminal Justice Administration (2004) p.4.
governance has moved at the forefront of the agenda for sustained human
development in recent years. Good governance helps in securing human well-
being and sustained development. But poor and bad governance is capable of
eroding the individual capabilities as well as institutional and societies’
capacities to meet even the basic needs of sustenance for large segments of the
population.3 It is fully realized and understood now that poverty is the result of
poor economy as well as poor governance. Being voiceless and powerless
makes it very difficult and incapacitates the poor and disadvantaged people to
seek and access justice and hence make themselves an easy prey for the state
and its agencies to deny them justice and other rights and benefits.4

Custodial violence is not a new phenomenon. It is known to have existed in

one form or the other, at several stages in the history of the world. It is only
that in recent times it has turned into a critical issue of utmost importance. It is
a disease and a virus growing in an ill body. Today custodial violence has
emerged as a major issue of human rights concern and one of the root
obstacles to democracy and development of human well-being in
contemporary world. Custodial violence has devastating effects on physical
and mental health as well as social functioning of the individuals, their
children, families, communities and society at large. The practice of custodial
violence in the developing countries like India is, however, more difficult and
complex. A large number of cases of police and other governmental agencies’
brutality take place not because of individual aberrations, but because of
systematic compulsions. The practice is more widespread and has gone
unchecked because of tacit support of senior police officials, bureaucrats,
politicians and judiciary. The fact is that the practice also enjoys the support of
a large section of the public in the mistaken belief that it is necessary for
effective maintenance of law and order.

Violence has been with us since the beginning of history, and so have the
instrumentalities of terror. What is then, about the phenomenon of terror today
that provokes such an urgency of response? Why is there a need to pass a law

3
National Human Development Report, 2001.
4
Kamlesh Kumar, Unpublished Ph.D., Custodial Crimes in Police Custody: Causes,
Consequences and Preventive Measures, Tata Institute of Social Sciences (2011) p.1.

2
against custodial violence? Why do we gather from the world over,
transcending all concerns and considerations of race, of religious affiliations,
of nationality, even of strategic advantage and historical grievance, to discover
how we can contain and counter this scourge?5 The truth is, custodial violence
is emerging as a new threat to an individual, his family, society, nation and
law and order situation and to the entire civilized world.

An organized body of civil servants can be called police whose primary duties
are the security of citizens, safety of public property and preservation of law
and order.6 The police have to abide by the executed laws strictly in
accordance to accepted standards of right and wrong and to the stated terms of
law, rules, argument etc. as police is needed to cater to the society for its
protection and preservation, integration and unity, development and progress.
Among the various agencies of government, police is the most visible
community agency and is often in the limelight of community scrutiny and
evaluation.7

In a democratic society, the police serve to protect, rather than impede,

freedoms. The very purpose of the police is to provide a safe, orderly
environment in which these freedoms can be exercised. A democratic police
force is not concerned with people’s beliefs or associates, their movements or
conformity to state ideology. It is not even primarily concerned with the
enforcement of regulations or bureaucratic regimens. Instead, the police force
of a democracy is concerned strictly with the preservation of safe communities
and the application of criminal law equally to all people, without fear or
favour.8

The police is treated as a service in democracy. They recognize and respect

human values, morality and true humanism. The people and the society are
their patrons. An efficient and an honest police force is the principal bulwark
of the nation against the violation of human rights of any kind. Criminal
justice system (including the courts, police and prisons) can’t afford to be

5
K.P.S.Gill and Ajay Sahni, The Global Threat of Terror- Ideological, Material and Political
Linkages (2002) p.1.
6
V.P.Srivastava, Indian Police- Law and Reality (1997) p.63.
7
Alphonse L. Earayil and James Vadackumchery, Police and the Society (1985) p.1.
8
United Nations International Police Task Force, 1996.

3
indifferent, inert, negligent, cruel or callous to the human rights of its citizens.
Democracy gets threatened when the law makers and the law enforcers
become the law breakers and the protectors of human rights turn into
persecutors. Regrettably, our police and prisons share the blame of being less
regardful to the limits of power in them. Neither national nor international law
permits anybody to have recourse to custodial violence, death or rape but still
this problem has grown multifold.

The word ‘torture’ which poses a challenge for the medical, legal and other
professions has become synonymous with the darker side of human
civilization. Torture and death in custody is not something new in the modern
world. It has been known since ages. But custodial violence and abuse of
power given under the Constitution and other statutes has raised major issues
of human rights concern and is hence an obstacle and hindrance to our
democracy and development in the contemporary society. It has devastating
effects on physical and mental health and social functioning of individuals,
their families, communities and society at large. The law enforcement
agencies have practiced this on prisoners, criminals and the wrongdoers
always. A large number of cases and incidents of custodial violence keep
coming to the light now and then.

Custodial violence can be committed in various forms including any

harassment which causes mental or physical suffering, by word of mouth,
making a person sit at the police station for long hours without any reason,
using third degree methods, stripping, molestation, rape, death etc. Hence it is
clear that custodial violence in India deserves an appraisal. Although there are
number of crimes committed in India but this sort of crime is peculiar in the
sense that it appears to be most atrocious and barbarous. It is committed by
those persons whose primary duties are preservation of order, prevention and
detection of crime and enforcement of law. Thus, custodial violence is a
matter of deep concern for all of us.

Torture is the inquiry after truth by means of torment. The police with their
wide powers are apt to overstep their zeal to detect crimes and are tempted to
use the strong arm against those who happen to fall under their secluded

4
jurisdiction. That tendency and that temptation must in the larger interest of
justice be nipped in the bud.9

On many occasions, when law breakers are arrested, they make wild
allegations and shout from roof-top ‘police brutality’ or ‘customs brutality’,
which is nothing but cat- calls.10

No person who supports human rights can support terrorism which results in a
grave violation of human rights of innocent citizens. A terrorist who violates
human rights of innocent people must be punished, but his own human rights
should not be infringed except in the manner permitted by law.11 But it needs
to be carefully examined whether the allegations of custodial violence are
genuine or are sham attempts to gain undeserved benefits masquerading as
victims of custodial violence.12

Custodial violence is a crime which is a species of man-made malady which is

growing in alarming proportions. By resorting to such excesses, the law
enforcers are only creating a congenial atmosphere for fostering terrorism. No
civilized society can afford to support this transformation of man into a beastly
animal. The police image in the estimation of the public has badly suffered on
account of the prevalence of this practice in varying degrees over the past
several years.13 Denying a person of his liberty is a serious matter.14 It is more
heinous than a game-keeper becoming a poacher.15

Torturing victims with a view to extorting information from them is a crude,

barbarous and reprehensible method of investigating and detecting crime.
Those who are entrusted with the duty of enforcing the law must learn to obey
the same. In police investigation as in other matters, the end does not justify
the means. The means are as important as the end itself.16 Custodial violence

9
Dagdu v. State of Maharashtra, (1977) 3 SCC 68.
10
Roshan Beevi and another v. Joint Secretary, Government of Tamil Nadu, 1984 Cri.L.J 134
Madras.
11
Speech of the chairman of NHRC at the National Foundation for Law and Social Justice, at
Kochi, organized by Justice V.R.Krishna Iyer.
12
Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, 2003(7) SCC 749; Munish Singh
Gautam v. State of Madhya Pradesh; 2005(9) SCC 631.
13
Fourth Report (June 1980) of National Police Commission.
14
Joginder Kumar v. State of Uttar Pradesh, (1994) 4 SCC 260.
15
Bhagwan Singh and another v. State of Punjab, AIR 1992 SC 1689.
16
Public Prosecutor v. Shaik Ibrahim, 1964 (2) Cri.L.J 636.

5
and custodial death must be seriously viewed for otherwise we will help take a
stride in police-raj. It must be curbed with a heavy hand.17 Torturing a person
and using third degree method are of medieval nature and they are barbaric
and contrary to law. The police and other authorities would be accomplishing
behind their closed doors precisely what the demands of our legal order
forbid.18 There is an inclination on the part of some of the supervisory ranks in
the police and other forces’ hierarchy to countenance this practice in a bid to
achieve quick results by short cut methods.19 In a society where the law is
paramount and when there is no evidence to suggest that a person resisted the
police from arresting him, no force whatever could be justified in the process
of taking him into custody.20 Worst violations of human rights take place
during the course of investigation when the police with a view to secure
evidence or confession often resort to third degree methods including torture
and adopt techniques of screening arrest by either not recording the arrest or
describing the deprivation of liberty merely as a prolonged interrogation.21
Persons detained in custody have as much right to life as any other ordinary
citizen.22 Interrogation does not mean inflicting injuries. It should be in its true
sense and purposeful namely to make the investigation effective. The
authorities must not exceed the powers which have been given to them to
perform their duties well and in a proper manner. If they fail in doing so then
they must be answerable for the same

If the power to kill anybody and attribute it to self-defense is accepted then

Article 21 of the Constitution of India would become meaningless. In case of
any death of a citizen occurring during the course of encounter or a shoot-out
or exchange of fire or in police or judicial custody, has to be registered as a
case of culpable homicide.23

17
Gauri shanker Sharma v. State of Uttar Pradesh, AIR1990 SC 709.
18
Bhagwan Singh and another v. State of Punjab, 1992(3) SCC.
19
Fourth Report (June 1980) of National Police Commission.
20
Dr. Ranjit v. State of Tripura and others, 2008 Cri.L.J 4607 Gau.
21
D.K.Basu v. State of West Bengal, 1997(1) SCC 416.
22
Basant Singh v. State of Punjab and others, 2008 Cri.L.J 4455 P&H.
23
A.P.Civil Liberties Committee rep. by its General Secretary v. State of Andhra Pradesh and
another 2008, Cri.L.J 402 A.P.

6
Enjoyment of the basic human rights is the entitlement of every citizen, and
their protection the obligation of every civilized state. They are inherent in and
are essential to the structure of society. They do not depend on the legal or
constitutional form in which they are declared.24

It is an obligation of state to ensure that there is no infringement of the

indefeasible rights of a citizen to life, except in accordance with law, while the
citizen is in its custody.25 State is duty bound to protect the fundamental rights
of the persons lodged in prison or jail. Infliction of injuries on the person in
custody amounts to violating his human rights and also his fundamental rights
guaranteed under Article 21 of the Indian Constitution.26 The State is
responsible for the tortuous acts of its employees.27

The State must be held responsible for the unlawful acts of its agents or the
officers and it must repair the damage done to the citizens by its officers for
violating their indivisible fundamental right of personal liberty without any
authority of law in an absolutely high handed manner. Where the
constitutional right is one guaranteed by the State, it is against the State that
the remedy must be sought if there has been a failure to discharge the
constitutional obligation imposed.28 When a person facing threat from many
persons is arrested and put in prison, the State should take effective measures
to protect him in prison from his enemies. If anything happens to him, the state
is liable to pay compensation to him or to his family members in case of his
death.29 The defense of sovereign immunity being inapplicable and alien to the
concept of guarantee of fundamental rights, there can be no question of such a
defense being available in the constitutional remedy. It is this principle which
justifies award of monetary compensation for contravention of fundamental
rights guaranteed by the Constitution of India, when that is the only
practicable mode of redress available for the contravention made by the state

24
Simpson v. Attorney General (Baigents’ case), 1994 NZLR 667.
25
People’s Union for Democratic Rights v. Police Commissioner, Delhi Police Headquarters,
1989 (4) SCC 730.
26
Ravindra Nath Awasthi v. State of Uttar Pradesh and others, 2009 Cri.L.J (NOC) 823 All.
27
Saheli, Women’s Resources Centre v. Commissioner of Police, Delhi and others, AIR 1990
SC 513.
28
Byrne v. Ireland, (1972) IR 241.
29
Smt. Rohini Lingam v. State and others, 2008 Cri.LJ (NOC) 961.

7
or its servants in the purported exercise of their powers, and enforcement of
the fundamental right is claimed by resort to the remedy in public law by
recourse to Articles 32 and 226 of the Indian Constitution.30

When the information is regarding the commission of cognizable offences by

the police officials, including his own higher officials, it is the duty of the
officer in charge of the police station to register the case. No police order
prevents him from doing so.31 There is no different procedure for the
investigation and prosecution of offence committed by police officers in
connection with their relations with the public.32

A court of law cannot close its consciousness and aliveness to stark realities.
Mere punishment of the offender can’t give much solace to the family of the
victim. Civil action for damage is a long drawn and cumbersome judicial
process. Monetary compensation for redressal by the court, finding
infringement of the indefeasible right to life of the citizens, therefore is, a
useful and at times perhaps the only effective remedy to apply balm to the
wounds of the family members of the deceased victim, who may have been the
bread winner of the family.33 Compensation in public law ought to be directed
to be paid by the State for the humiliating and unauthorized assault caused by
the police or any other officer of the government to anyone.

The public law proceedings serve a different purpose than the private law
proceedings. The relief of monetary compensation, as exemplary damages, in
proceedings under Article 32 by the Supreme Court or under Article 226 by
the High Courts, for established infringement of the indefeasible right
guaranteed under Article 21 is a remedy available in public law and is based
on the strict liability for contravention of the guaranteed basic and indefeasible
rights of the citizen. The purpose of public law is not only to civilize public
power but also to ensure the citizen that they live under a legal system which
aims to protect their interests and preserve their rights therefore, when the
court moulds the relief by granting compensation in proceedings under Article

30
Bhim Singh v. State of Jammu and Kashmir, 1985(4) SCC 677; People’s Union for
Democratic Rights v. Police Commissioner, Delhi Police Headquarters, 1989 (4) SCC 730.
31
A.Nallasivan v. State of Tamil Nadu and others, 1995 Cri.L.J 2754 Mad.
32
State of Punjab v. Raj Kumar, (1988)1 SCC701.
33
D.K.Basu v. State of West Bengal, AIR 1997 SC 610.

8
32 or 226 seeking enforcement or protection of fundamental rights, it does so
under the public law by way of penalizing the wrongdoer and fixing the
liability for the public wrong on the state which has failed in its public duty to
protect the fundamental rights of the citizens. The payment of compensation in
such cases is not to be understood, as it is generally understood in a civil
action for damages under the private law but in the broader sense of providing
relief by an order of making ‘monetary amends’ under the public law for the
wrong done due to breach of public duty, of not protecting the fundamental
rights of the citizen. The compensation is in the nature of exemplary damages
awarded against the wrongdoer for the breach of its public law duty and is
independent of the rights available to the aggrieved party to claim
compensation under the private law in an action based on tort, through a suit
instituted in a court of competent jurisdiction or/ and prosecute the offender
under the penal law.34 Mere acquittal of the police personnel in the criminal
case will not absolve the responsibility of the State government in paying
compensation for the atrocities committed and custodial violence caused
against the citizen. For the custodial violence the aggrieved party is entitled to
compensation not only under the principle of strict liability but also on
absolute liability principle.35

The award of compensation in the public law jurisdiction is also without

prejudice to any other action like civil suit for damages which is lawfully
available to the victim or the heirs of the deceased victim with respect to the
same matter for the tortuous act committed by the functionaries of the State.
The relief to redress the wrong for the established invasion of the fundamental
rights of the citizen, under the public law jurisdiction is in addition to the
traditional remedies and not in derogation of them. The amount of
compensation as awarded by the court and paid by the State to redress the
wrong done, may in a given case, be adjusted against any amount which may
be awarded to the claimant by way of damages in a civil suit.36

34
Bhim Singh v. State of Jammu and Kashmir, 1985(4) SCC 677.
35
Palaniammal v. State of Tamilnadu, (2008)5 MLJ 541.
36
D.K.Basu v. State of West Bengal, AIR 1997 SC 610.

9
Encounter is also a corollary of custodial violence and is increasing
alarmingly. Various cases have been reported from different parts of the
country of encounter killings or deaths. The increase in number shows a
consistent and alarming pattern of tolerance for the use of violence by state
agencies.37

Nobody can direct or guide the police and other authorities about how to deal
with the terrorists or other bad elements of the society when they try to run
and evade arrest etc. It is for the force on the spot to decide when to act, how
to act and where to act. Nobody can tell them about how they should fight and
defend themselves.

But if the police has information that terrorists are gathering at a particular
place and if they will surprise them, the proper course for them is to deal with
them according to the law. Administrative liquidation is certainly not a course
open to them.38

In an encounter if police officer causes death of a person even in self- defense,

it is culpable homicide, but whether it would constitute an offence or not, that
would depend on the investigation and the trial, if any. But the police officer
who caused the death, may be in self- defense, can’t himself be the judge of
his own cause.39

The law on the private defense would play only at the time of trial or at best
during the investigation, but not before investigation.40

It is not the domain of the representative of the executive to decide whether

the occurrence of firing by police took place by way of self- defense or not.
Even if such a finding had been returned by the RDO a case should have been

37
Submission by the Asian Legal Resource Centre to the Human Rights Council’s Universal
Periodic Review on Human Rights in the Republic of India.
38
People’s Union for Democratic Rights v. Union of India, (1997)3 SCC 433.
39
A.P.Civil Liberties Committee rep. by its General Secretary of Andhra Pradesh and another
v. State, Cri.L.J 402 A.P.
40
V.Subramani v. State of Tamil Nadu, (2005)10 SCC 358; A.Anasurya v. Station House
Officer, Tadicherla.

10
filed as against the police official concerned and the finding of the RDO
should have been tested before the judicial forum.41

If a police officer gives an information to the in charge of police station that in

an encounter a person got killed while police officer was acting in self-
defense, it amounts to giving an information of a cognizable offence having
been committed because life is lost. Criminal Procedure Code does not
prohibit inclusion of police officials, in the list of accused, if during the course
of investigation their culpability is suspected.42

When a person is dead in an encounter with the police, the question of

accusing him of attempt to murder doesn’t arise. Further, any investigation
into the question as to whether the death of the person is on account of any
provocation and other related facts, can’t be carried out on the basis of a crime
registered under section 307, or the allegations which are relevant to that
provision. In fact, it would amount to contradiction in terms.

The cases where violation of Article 21 involving custodial death or torture is

established or is incontrovertible stand on a different footing when compared
to cases where such violation is doubtful or not established where there is no
independent evidence of custodial violence, rape or death and where there is
neither medical evidence about any injury or disability, resulting from
custodial torture, nor any mark or scar, it may not be prudent to accept claims
of human right violation by persons having criminal records in a routine
manner for awarding compensation.43 The courts are required to have a change
in their outlook, approach, appreciation and attitude, particularly in cases
involving custodial violence and they should exhibit more sensitivity and
adopt a realistic rather than a narrow technical approach, while dealing with
the cases of custodial crimes so that as far as possible within their powers, the
truth is found and guilty doesn’t escape and the victim of the crime has the
satisfaction that ultimately the majesty of law has prevailed.44

41
Denny v. District Collector, Vellore and other, (2008)2 MLJ 329.
42
A.P.Civil Liberties Committee rep. by its General Secretary v. State of Andhra Pradesh and
another, 2008 Cri.LJ 402 A.P.
43
Sube Singh v. State of Haryana, 2006 Cri.LJ 1242 SC.
44
Munish Singh Gautam and other v. State of Madhya Pradesh, AIR 2005 SC 402.

11
In cases where custodial violence or death or rape or other violation of the
rights guaranteed under the Constitution of India is established, courts may
award compensation in a proceeding under Articles 32 or 226. However,
before awarding compensation the courts will have to pose to itself the
following questions:-

1. Whether the violation of Article 21 of the Constitution of India is

patent and incontrovertible.
2. Whether the violation is gross and of a magnitude to shock the
conscience of the court.
3. Whether the custodial torture alleged has resulted in death or whether
it is supported by medical report or visible marks or scars or disability.
Where there is no evidence of custodial violence of a person except his
own statement, and where such allegation is not supported by any
medical report or other corroborating evidence, or where there are
clear indications that the allegations are false or exaggerated fully or in
part, courts may not award compensation as a public law remedy under
Article 32 and 226 but relegate the aggrieved party to the traditional
remedies by way of appropriate civil or criminal action.

Very rarely in cases of police torture or custodial violence or custodial deaths,

a direct ocular evidence of the complicity of the police personnel would be
available. Many a times due to ties of brotherhood they prefer remaining silent
or more often than not even pervert the truth to save their colleagues then to
report the matter for departmental inquiry or register a first information report
and investigate the matter so that guilty may be punished.

The exaggerated adherence to and insistence upon the establishment of proof

beyond every reasonable doubt, by the prosecution, ignoring the ground
realities, the fact situations and the peculiar circumstances of a given case
often results in miscarriage of justice and makes the justice delivery system a
suspect. In the ultimate analysis the society suffers and the criminal gets
encouraged.45

45
State of Madhya Pradesh v. Shyamsunder Trivedi and others, (1995)4 SCC 262.

12
In the prosecution of a police officer for an alleged offence of having caused
bodily injuries to a person while in police custody, if there is evidence that the
injury was caused during the period when the person was in the police
custody, the court may presume that the injury was caused by the police
officer having the custody of that person during that period unless he proves to
the contrary. The onus to prove the contrary must be discharged by the police
official concerned.46

The cases of custodial deaths, rapes and violence have given rise to myriad
hard-touching and soul searching questions like what we need- police lock-up
or death trap, police lawlessness or rule of law, police muscle or personal
modesty, police harassment or human rights, in this country where rule of law
is inherent in each and every action and right of life and liberty is prized
fundamental right adorning highest place amongst all important fundamental
rights, whether life has no meaning to a person in custody, whether personal
modesty, decency, dignity on arrest of a person are increasingly exposed to
third-degree practices which over-step the bounds of propriety, how long,
harsh, crude, oppressive, excessive and torturous third-degree methods to the
arrested person in the name of seeking information or investigation can be
allowed to continue, whether police personnel are custodians of law and order
or law unto themselves and depredators of civil liberties, whether to strip a
person of his clothes and making him bare, naked and employing all sorts of
physical and mental torture is not violative of prized constitutional right
enshrined under Article 21 of the Constitution of India, whether police power
admits of no human rights of a person in its custody, whether for inhuman acts
of its officers and servants, the State must be made liable for violation of
fundamental rights of its citizens are some of the questions which need
immediate and permanent answers.

Custodial violence, torture and abuse of police power are not peculiar to this
country rather it is widespread. It has been the concern of the international
community as the problem is universal and the challenge is almost global. The
Universal Declaration of Human Rights in 1948 which marked the emergence

46
113th Report of the Law Commission.

13
of a worldwide trend of protection and guarantee of certain basic human rights
stipulates in Article 5 that “No one shall be subjected to torture or to cruel,
inhuman or degrading treatment or punishment”. Despite this pious
declaration, the crime continues unabated, though every civilized nation shows
its concern and makes efforts for its eradication.

If it is assuming alarming proportions, now-a-days, all around, it is merely on

account of the devilish devices adopted by those at the helm of affairs who
proclaim from rooftops to be the defenders of democracy and protectors of
people’s rights and yet do not hesitate to condescend behind the screen to let
loose their men in uniform to settle personal scores, feigning ignorance of
what happens and pretending to be peace-loving puritans and saviors’ of
citizens’ rights.

Article 21 which is one of the luminary provisions in the Constitution of India,

1950 and is a part of the scheme for fundamental rights occupies a place of
pride in the Constitution. The Article mandates that no person shall be
deprived of his life and personal liberty except according to the procedure
established by law. This sacred and cherished right i.e. personal liberty has an
important role to play in the life of every citizen. Life or personal liberty
includes a right to live with human dignity. There is an inbuilt guarantee
against torture or assault by the State or its functionaries. Chapter V of the
Code of Criminal Procedure, 1973 deals with the powers of arrest of persons
and the safeguards required to be followed by the police to protect the interest
of the arrested person. Articles 20(3) and 22 of the Constitution further
manifest the constitutional protection extended to every citizen and the
guarantees held out for making life meaningful and not a mere animal
existence. It is, therefore, difficult to comprehend how torture and custodial
violence can be permitted to defy the rights flowing from the Constitution.
The dehumanizing torture, assault, rape and death in custody which have
assumed alarming proportions raise serious questions about the credibility of
the rule of law and administration of the criminal justice system. The
community rightly gets disturbed. The cry for justice becomes louder and
warrants immediate remedial measures.

14
Justice Brandeis’ observation which has become a classic needs to be
followed- “Government as the omnipotent and omnipresent teacher teaches
the whole people by its example. If the Government becomes a lawbreaker, it
breeds contempt for law; it invites every man to become a law unto himself.”47

The diabolic recurrence of torture by officials has resulted in creation of a

terrible scare in the minds of common citizens that their lives and liberty are
under a new and unwarranted peril as the guardians of law themselves destroy
the human rights by custodial violence and torture, invariably resulting in
death. The vulnerability of human rights assumes a traumatic torture when
functionaries of the State whose paramount duty is to protect the citizens and
not to commit gruesome offences against them, in reality perpetrate them.

The exaggerated adherence to and insistence upon the establishment of proof

beyond every reasonable doubt by the prosecution, at times even when the
prosecuting agencies are themselves fixed in the dock, ignoring the ground
realities, the fact situation and the peculiar circumstances of a given case,
often results in miscarriage of justice and makes the justice delivery system
suspect and vulnerable. In the ultimate analysis the society suffers and a
criminal gets encouraged. Torture in custody, which of late is on the increase,
receive encouragement by this type of an unrealistic approach at times of the
Courts as well because it reinforces the belief in the mind of the police and
other governmental agencies that no harm would come to them if one prisoner
dies in the lock-up, jail or otherwise because there would hardly be any
evidence available to the prosecution to directly implicate them with the
torture. The Courts must not lose sight of the fact that death in custody is
perhaps one of the worst kind of crimes in a civilized society, governed by the
rule of law and poses a serious threat to an orderly civilized society. Torture in
custody flouts the basic rights of the citizens recognized by the Indian
Constitution and is an affront to human dignity. Police excesses and the
maltreatment of detainees/under-trial prisoners or suspects tarnishes the image
of any civilised nation and encourages the men in uniform to consider

47
Olmstead v. United States, 1928 (277) US 438 at p. 485; Mapp v. Ohio 1961 (367) US 643
at p. 659.

15
themselves to be above the law and sometimes even to become a law unto
themselves.

Unless stern measures are taken to check the malady of the very fence eating
the crops, the foundations of the criminal justice delivery system would be
shaken and civilization itself would risk the consequence of heading towards
total decay resulting in anarchy and authoritarianism reminiscent of barbarism.
The Courts must, therefore, deal with such cases in a realistic manner and with
the sensitivity which they deserve, otherwise the common man may tend to
gradually lose faith in the efficacy of the system of the judiciary itself, which
if it happens will be a sad day for anyone to reckon with.

Serious concern shown by the Courts and strict measures to check custodial
crimes or use of criminal force during investigation/interrogation, has not
deterred the force to mend its way and go in for scientific investigation of a
crime. Use of violence by its official sometime leading to death has apparently
gone unabated, despite concerns having been expressed by various Courts in
this regard from time to time.

In Joginder Kumar’s case48, the Apex Court has held that no arrest can be
made because it is lawful for the police officer to do so. The existence of
power to arrest is one thing and the justification for exercise of it is quite
another. The officer must be able to justify the arrest apart from his power to
do so. Arrest and detention in police lock-up of a person can cause
incalculable harm to the reputation and self-esteem of a person. No arrest can
be made in a routine manner or on mere allegation of commission of an
offence made against a person. Directions of the Apex Court are in the nature
of law and binding on all concerned, and by itself reduce the indiscriminate
arrests without any justification to arrest a person and as a result thereof, also
reduce in indiscriminate violence, assault, beating and excesses of officers in
custody. However, before the Apex Court questions to prevent police torture,
police indecency, use of third-degree methods and abuse of police power in
the name of seeking information from the arrested person or investigation,
time has come that the State Government rises to the occasion by striking the

48
1994 Cri LJ 1981.

16
balance between the life of a person in police custody and the power of law
enforcing agencies to bring the criminals to the book by making appropriate
rules or providing guidelines to the police personnel in such matters. Gross
and flagrant violation of human rights of the persons in police custody or in
police lock-up has rendered the fundamental rights enshrined in Article 21 of
the Constitution of India meaningless.

The Police Manual has become outdated. The Supreme Court has time and
again emphasised that the precious guarantee by Article 21 of the Constitution
of India cannot be denied to convicts, under trials or other prisoners in custody
except according to the procedure established by law and police or prison
authorities owe a great responsibility to ensure that citizens in custody are not
deprived of their right to life because their liberty is in the very nature of
things circumscribed by the very fact of their confinement and, therefore, their
interest in the limited liberty left is rather precious. The Apex Court in
unequivocal terms has held that the duty of care on the part of the State is
strict and admits of no exception. The court observed that: “Police Officers
who are the custodians of law and order should have the greatest respect for
the personal liberty of citizens and should not flout the laws by stooping to
such bizarre acts of lawlessness. Custodians of law and order should not
become depredators of civil liberties. Their duty is to protect and not to
abduct.”

Custodial violence including rapes and deaths in the custody draw the
attention of the media and general public. The Human Rights Commissions
also take a serious note of it. In a democratic set-up, in order to ensure stable
conditions and to enable its citizens to enjoy their fundamental rights without
threat to their lives, liberty and dignity, it is the duty of the State to regulate
brutal activities on the basis of legal principles. There are number of
safeguards available to the detainees under the Indian legal system. These
safeguards are provided under Constitution of India, Indian Penal Code,
Criminal Procedure Code, Indian Evidence Act and such other legislations.

This mandate of law is required to be followed by the agencies to protect the

interest of the arrested person so that justice may be secured by preventing the

17
custodial violence. The functioning of police and other governmental agencies
has a direct bearing on human rights. It is indeed true that no amount of
compensation can revive a physical frame battered and shattered by torture.
The compensation can be granted as a recompense not to compensate for the
loss and suffering as for punishment for the tormentor and make society’s
condemnation of unpardonable behavior. Sanction against errant officers for
using violence or for causing death is not sufficient. Constant and ceaseless
vigilance and unremitting brutality and violence is called for. It is only
through the working of both the internal and external mechanism of control, a
human right culture in every department and force can be set up or built up.

A high degree of sensitization and training is an essential component of any

program directed towards prevention of torture in the society. Sensitization is
largely a consequence of awareness arising out of manifestation of societal
concern and the condemnation of degrading acts.

1.1 OBJECTIVES OF THE STUDY

The study has been undertaken in view of the following broad objectives:

1. To discuss the concept of custodial violence and its history.

2. To find and discuss the causes or reasons or factors responsible for
custodial violence.
3. To understand the impact and consequences of custodial violence
on victim, perpetrator of the crime and their families.
4. To discuss the various laws, rules and regulations followed at
national and international level.
5. To review the role played by Indian judiciary and various human
rights commissions to prevent such crime.
6. To evaluate the efficiency of our criminal justice system.
7. To put forward certain measures and suggestions to curb the
menace of custodial violence in India.

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1.2 SCOPE AND SIGNIFICANCE OF THE STUDY

The basic aim of the thesis is to highlight the problem of atrocities committed
by the police and other investigating agencies on the people under their
custody. Through this thesis an effort to highlight the various aspects of
custodial violence is made. What are the causes or reasons, the types and the
solutions to curb this menace from our society have been explored. The
malady is deep rooted in our criminal justice system. There is a need to draw
public attention towards the malpractices of police and other governmental
forces in India that is maintained and trained at public expense.

The study undertaken examines the cases of custodial crimes. But all kinds of
custodies and cases relating to them could not be undertaken by the researcher.
For the purpose of the qualitative inquiry of present study, cases of custodial
crimes were included as part of the study. Inclusion criteria adopted includes
the cases recorded by various agencies such as National Human Rights
Commission, District Crime Records Bureau, local media reported and social
activist referred cases. The exclusion criteria has also been taken into
consideration while focusing on the study. Therefore, alleged custodial
violence and fake encounter deaths, false implications and violence against
police are excluded from the present study. In recent years, the protection of
human rights of persons in custodial institutions has emerged as vital issue of
criminal justice. Since, the establishments of National Human Rights
Commission and proactive role played by Supreme Court and various High
Courts, the complexity of custodial crimes in India has been highlighted. The
present study focuses on causes, consequences of custodial violence and
critically examines the preventive and remedial measures to mitigate the
causative factors to combat the menace of custodial crimes and strengthens-
preventive and remedial measures to rehabilitate the victims of custodial
crimes.

It is hoped and believed that the findings of present study could be used by
policy makers, police personnel, administrators, human rights defenders,
social scientists, civil society groups including voluntary organizations and

19
researchers etc. for the improvement of our criminal justice system and
complete abolition of custodial violence from India.

1.3 HYPOTHESIS

The Jurisprudence of safe guards against Custodial Violence is in rudimentary

stage in India. In spite of the dynamism and guidelines issued by the Apex
Court, the other branches of the government- the Executive and the
Legislature, have failed to achieve the norms set at international level, at some
of the countries and the Supreme Court directives itself.

1.4 RESEARCH QUESTIONS

In this background, there are certain key questions that require consideration
and the researcher has through this study made an attempt to find answers to
them.

1. Why do police and other governmental agencies use force or

violence or torture during investigation?
2. What are the laws at national and international level to avoid or to
reduce custodial violence, rape and deaths?
3. What are the loopholes in the laws?
4. What is the response or action taken by the judiciary in convicting
personnel against whom complaints have been made?
5. What more remedial measures may be adopted to curb or eradicate
custodial violence from India?

1.5 RESEARCH METHODOLOGY

Different modes of reality will lead to different propositions about what reality
is and therefore different ways of establishing what can be accepted as real
and justifying the data relevant to reality as well as different strategies for
collecting such data can be made use of. There are four aspects of research
which are in-built into all meaning systems such as ontology, epistemology,
methodology and methods. It depends on the ontological and epistemological

20
assumptions researcher makes about the reality and accordingly adopts the
methodology and methods most appropriate for research.

The present study is based on doctrinal research and is an explorative study.

The qualitative methodology has been adopted for the purpose of the study.
The qualitative research paradigm contains the researcher’s ontological,
epistemological and methodological premises or an interpretive approach, a
basic set of belief that guide the entire research action by shaping the
questions asked by the researcher and interpretation drawn from the same. As
qualitative approach dismisses the quantitative argument of objective reality
and holds the position that reality is not given straightforward or is out there
rather it is dynamic, covert and constructed through a dialectical interaction
between the ontological world and human mind. It involves human
consciousness or subjectivity which includes beliefs, values, intentions and
meaning attributed to human actions within a culture. The present thesis
attempts to capture the in-depth understanding to the phenomena of custodial
violence from the point of view of participants, victims, relatives, officials,
academicians etc. An attempt has been made to use narrative inquiry to make
possible the difficult domain of research in India such as the problem of
custodial violence. This study, is also not free from limitations and these
limitations related with research methodology and challenges faced by
researcher as well strategies adopted to resolve it, has far reaching
implications. It would have been appreciable to cover the entire country or at
least some of the states to put across the true data on custodial violence.
However, considering the limited time and due to financial and social
constraints, the present study has restricted its scope only to doctrinal research
by taking help of various judgments, law commission reports, other
governmental and non-governmental agencies’ reports and international
treaties by focusing on causes, consequences and preventive measures to curb
this problem without undertaking any systematic surveys, interviews or
questionnaires. Due to absence of a universal definition of custodial violence
in India as well as at international level because of lack of a proper legislation
on the subject, some difficulty was faced by the researcher. The researcher
could not go into studying the impact of custodial violence on the individuals,

21
and their families as meeting with each one of them was not possible. The
study of custodial violence is a difficult domain of research in India as it is
time consuming, requires financial support and because nobody is ready to
disclose the reality or the true hardship faced by them. A very few studies
have been conducted either by public institutions/universities or police
research and training institutions based on proper surveys as there is no true
and proper account of the problem.

1.6 SCHEME OF STUDY

In this research work, the researcher has made an endeavour to understand

custodial violence, its causes, and reasons by exploring the genesis of the
problem, its historical perspective, its manifestations, the legal framework to
deal with it and its human rights aspects. There is a vicious circle that
overzealousness of law sometimes prove to be counterproductive that may
result in severe violations of human rights, particularly, right to life and
personal liberty. The world over it is more or less accepted that laws to deal
with custodial crimes have to be distinct and different from those meant for
other offences and criminal activities of normal and regular offenders or
criminals.

Therefore, in this work an endeavour has been made to study and understand
the balanced need of an effective and efficacious legal system that may
address the need to discourage and combat custodial violence, rape and death
and also save the innocent from any form of misapplication of such laws.

The thesis is divided into eight chapters in all. The first chapter introduces the
problem of custodial violence in India. The second chapter deals with the
historical perspective i.e. since when and how this problem has managed to
survive till date since the time of ancient India till today. The third chapter
discusses the concept of custodial violence. Different forms of ill treatment
and types of custodial violence have been discussed in detail. The fourth
chapter analyses the factors leading to custodial violence. Different laws,
loopholes and lacunas in them, social and other factors have been analyzed in
detail in this chapter. The fifth chapter studies the international conventions

22
and treaties. The domestic, international law and their interrelation has been
explored. The sixth chapter studies the constitutional and statutory laws
against custodial violence. The seventh chapter deals with judicial approach
towards the problem of custodial violence. The judicial review and precedents
and the growth in judicial thinking is mentioned. The eighth and the final
chapter tries to make an effort and leave an impact on the society and
governmental institutions by giving conclusion and suggestions to the study
undertaken.

It is only appropriate to make a review of the existing literature and available

study material relating to problem of custodial violence and human rights
jurisprudence.

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