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Who Polices The Police?: A Practical Assessment Of Illegal Arrests And Custodial Deaths

Innocent until proven guilty1is considered to be the golden thread connecting the burden of proof and the presumption of innocence in criminal law. This term was coined by Sir William Garrow, a British barrister known for fighting justice. In a democratic society like India, an individual’s basic/fundamental rights that are ought to be considered sacrosanct are, at times, treated as inconsequential. This article aims to carve out the rights of an accused at the time of arrest, search & seizure, and trial. 

By: Abhinav Sharma and Kunal Srivastava

RIGHT TO BE INFORMED AND PROTECTION AGAINST ILLEGAL ARREST

Any individual being arrested, has the right to know the grounds of such arrest2 and where the offence is bailable, the right to be released on bail. These rights are to be informed to the accused by the police officer making the arrest.3

The right to be informed has been conferred the status of a fundamental right under Article 22 of the Constitution of India.4 Which further provides the right to consult, and to be defended, by a legal practitioner of his/her choice and the right to be produced before the nearest magistrate within 24 hours of the arrest.

If the arrest is being made under a warrant, the accused has the right to be notified of the substance of the warrant.5 and the right to have a relative or a friend named by him/her to be informed of the arrest. The accused also has the right to meet an advocate of his choice and have him/her present even during interrogation.6

RIGHT TO REMAIN SILENT

The right to remain silent is a crucial right of the accused that emanates from the fundamental right of protection against self-incrimination provided under the Indian Constitution under Article 20(3) which protects an accused from being compelled to be a witness against himself. This right is based on the cardinal principle of criminal law “innocent until proven guilty”, and is also recognised as the right to remain silent under Section 313(3) of the Code of Criminal Procedure7 which states that “The accused shall not render himself liable to punishment by refusing to answer such questions, or by giving false answer to them”.

However, if the accused decides to remain silent, in such event, the Court would be entitled to draw an inference including “adverse inference” against the accused as may be permissible in accordance with the law.8

The Court can also convict an accused if he/she fails to provide an explanation for the facts and circumstances pointing against him/her.9

Hence, the right to remain silent may lead to adverse inference as seen in various judicial pronouncements.10 The accused shall be very careful while recording his/her statement before any magistrate. 

RIGHT AGAINST ILLEGAL DETENTION AND FAIR TRIAL 

An arrested individual has the right to be produced before the nearest magistrate, who may further extent his custody for a term not exceeding 15 days which may be further extended.11

If any arrestee is detained in police lock ups beyond 24 hours without being produced before the magistrate and as per the procedure laid in law, such detention would be illegal.12

After being arrested, the accused has the right to a fair trial13 before an independent, impartial and competent judicial authority. So far as the rights concerned during the investigation stage are concerned, Article 21 of the Constitution of India is relevant. Article 21 states that “No person shall be deprived of his life or personal liberty except according to procedure established under law”. Indian courts have interpreted this in a catena of judgments that provide valuable instructions to judicial officers on how to protect the rights of an accused in order to assure a fair trial. Judicial officers are expected to follow every procedural safeguard and protect every assurance provided by the law to all parties. 

There are various procedural safeguards that protect an accused from illegal arrest and detention, like prohibiting an investigating officer from obtaining statements from witnesses through threatening conduct14, duty of the police officer making the arrest to inform about the arrest to any person nominated by the arrested person.

It is mandatory for the police officer to prepare an “Arrest Memo” indicating the date, place and time of arrest which has to be signed by two independent witnesses and countersigned by the officer making the arrest.15 It is mandatory to conduct a medical examination of the accused at the time of arrest and any kind of torture on the accused is absolutely forbidden inasmuch as torture is a violation of the fundamental rights.16

FROM TRIAL TO THE FINAL JUDGMENT

Trial of any accused has to be according to the procedure laid down by the law and the principles of the criminal judicial system. The basic principle is that the accused is presumed innocent until proven guilty beyond a reasonable doubt. 

“Beyond reasonable doubt” casts a significant obligation on the Investigating Authorities as it makes clear that probability, no matter how great, is not sufficient to convict an accused if another hypothesis consistent with the innocence of the accused is plausible.

Recently in the case where the founder editor-in-chief of Tehelka was acquitted of all charges of sexual assault and rape of a junior colleague by the District and Sessions Court at Mapusa, Goa due to lack of evidence which prima facie highlights the shortcoming on the part of the police. The judgement of acquittal, however, has been challenged before the Bombay High Court and is currently pending adjudication. Without considering the merits of the actual case, what can be said is that the lack of evidence was sufficient in itself to make the requirement of “beyond reasonable doubt” insurmountable.

PREDOMINANT ISSUES IN INDIA – Custodial violence and death.

Custodial violence refers to any kind of an act of violence on an arrested individual who is in police custody. Custodial torture is universally held as one of the cruellest forms of human rights abuse. While this evil has been forbidden by the Constitution of India, the Supreme Court, the National Human Rights Commission (NHRC) and the United Nations, it is unfortunate that, to this date, we come across chilling stories of custodial violence in India. There is an urgent need to strike a balance between the individual human rights and societal interests in combating crime by using a realistic approach.17

Between 2001 and 2018, a total of 1,727 people died in police custody. However, during this period, as a stark contrast, only 26 officers have been convicted, most of whom are out on bail.18 There are precedents19 and various provisions under the law to highlight the vicarious liability of the state in cases of custodial violence. However, the ground realities illustrate that the prevailing laws are far from truly embracing the tenets of due process.

A precaution against the possibility of torture in police custody is instilled under various statutes like the Evidence Act through provisions like Sections 24,25 and 26 – where even a confession made to a police officer in inadmissible in court of law.

Indian Precedents on Custodial Violence and Deaths 

A division bench consisting of Hon’ble Mr. Justice P.N. Prakash and Hon’ble Mr. Justice B.Pugalendhi took a Suo Motu cognizance20 on custodial torture and death of a father and son who were arrested from their shop in a town in Tuticorni district for keeping the shop open past the permitted hours and were brutally assaulted leading to their death. The investigation was taken up by the CBI, who informed the Court that the victims (father-son duo) were tortured for more than 7 hours. A chargesheet has been submitted by the CBI against nine police officers in connection with the custodial death of the victims. This incident of the gruesome torture meted out by the police occurred as recently as last year, points to the urgent need for the State to take more responsibility to ensure that the ban on torture is upheld in letter as well as in spirit. 

The Supreme Court in D.K Basu v. State of West Bengal21 States that “Custodial deaths is one of the worst crimes in a civilized society governed by the Rules of Law. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? The answer, indeed, has to be an emphatic No”.

This judgment by the Supreme Court of India holds immense significance in the annals of human rights protection. This judgment laid down very important guidelines for prevention of police violence and torture in custody. They address core areas of protection of fundamental rights, elimination of criminalization of police, and reforms in policing. The Apex Court issued a list of 11 guidelines to be followed in all cases of arrest and detention. 

Summary of the guidelines issued: The Court directed that the identification of the police personnel making the arrest should be clear and recorded, it directed for mandatory preparation of an arrest memo that has to be counter signed by the arrested person. While dealing with the issue of intimation of arrest, the Court issued directions for immediate intimation of arrest to a relative or a friend as soon as possible without undue delay and mandatory entry of the same in the case diary with the particulars of the officer who makes the arrest. To deal with issues of custodial injuries, the Court directed that the arrested person shall be examined for any injuries upon request and a copy of such inspection memo shall be given to the detainee after being countersigned by the officer making such inspection, the Court also directed that the detainee shall undergo a medical examination by a trained physician on the panel of approved physicians appointed by the Director of Health Services of the State or the concerned Union Territory every 48 hours while in custody. The Court further directed that the arrestee shall be provided with all documents including the arrest memo and the same shall be sent to the concerned magistrate for registration. The Court also issued mandatory directions that the arrestee shall be informed of his right to meet with an attorney of his choice even during interrogation and that a control room shall be provided at all Central and State levels wherein an intimation of arrest of any arrestee shall be made within 12 hours of his/her arrest. 

This judgment also laid stress on India’s ratification of the UN Convention against Custodial Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (1984)

Some other important judgments that lay emphasis on the rights of an arrested person are, Joginder Kumar v. State of UP.22 Where the Supreme Court gave directions that no arrest can be made on mere allegations or suspicion and issued certain directives to be followed at the time of arrest. In Nilabati Behera v. State of Orissa23 the apex court pulled up the state for its responsibility for violation of fundamental rights and ordered for criminal proceedings against the responsible police officers. The court even ordered a compensation of INR 1.50 lakh to be paid to the family of the deceased. 

CONCLUSION AND SUGGESTIONS

As observed above, an Individual under arrest has statutory rights under the India Law ensuring protection against illegal detention and enforcement of the fundamental rights. However, the ground reality remains adrift. The question remains that who will police the police?

No doubt that the judiciary has time and again intervened and taken cognizance to ensure enforcement of fundamental rights but nationwide implementation of such important guidelines and directions are far from reality.

Custodial torture continues to remain a vice in the hands of the law-enforcing authorities to extract information and confessions or to oppress the marginalized sections of society. Handing out strict punishments to the culpable officers is not preferred for the simple reason that the government is highly dependent on the law-enforcing authorities. The realization that the acts done by the executive wing of our government is first a public duty by public servants is essential to break the chain of torture and violence. 

The need of the hour is to formulate strict police reforms to educate and train officials involved in cases involving deprivation of liberty. Access to prisons should be regular, State government should ensure that CCTV are installed at every police station and the same should be subjected to weekly audit by an independent body. As suggested by the Supreme Court24 surprise inspections by non-official visitors should be made mandatory which would act as a preventive measure against any form of custodial torture/violence. 

The 273rd law commission report25 on “Implementation of the United Nations Convention against torture and other cruel, Inhuman and degrading treatment or punishment through legislation” must be adopted through legislative process. Further, The Prevention of Torture Bill 2018 which was introduced with the objective to ‘provide punishment for torture inflicted by public servants or any person inflicting torture with the consent or acquiescence of any public servant…’has unfortunately taken a back seat and the need of the hour is to give the bill serious consideration.

Salient features of the bill: The bill mentions that India is a signatory to United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

The bill defines torture as an act by a public servant or by a person with acquiescence of a public servant, causes grievous hurt or danger to life, limb or health (whether mental or physical).

Further the bill proposes punishment of minimum 3 years which may be extended to 10 years and fine, for torture inflicted for purpose of extorting confession, or for punishing or on the ground of religion, race, place of birth, residence, language, caste or community or any other ground. 

The state should also make efforts to try and educate individuals about their rights, a notice, or a pictorial representation, or free legal aid shall be ensured to any arrested person if in need so as to ensure that he/she is well aware of his/her rights. Such attempts at informing the general public about their rights should be promoted and encouraged by the state governments. 

DISCLAIMER: This article has been made available for the purpose of providing information only for the reader’s knowledge and personal use. Please take note that the content and information contained in this article should not be construed as nor relied upon as legal advice. The recipient of the information contained herein should not act, nor refrain from acting, based upon any or all the content provided herein and should always seek the advice of a competent legal counsel licenced to practice the relevant law in the appropriate jurisdiction.

Abhinav Sharma and Kunal Srivastava are Partners at Sharma Srivastava and Associates, Noida.

CITATIONS:

  1. State of U.P v Naresh & Ors (2001) 4 SCC 324, Kali Ram v. State of H.P. (1973) 2 SCC 808.
  2.  Section 50 Code of Criminal Procedure, 1973 (Cr.P.C.).
  3.  Ajit Kumar Sannah v State of Assam, 1976 Cr LJ 1303 (Gau-DB), Sheesh Ram v State of UP, 2006 (55) ACC 750 (All), Setrucharala Chandrasekhara Raju v State of AP, 2001 (3) Crimes 152 (AP).
  4.  Article 22(1) The Constitution of India, 1949.
  5.  Section 75 Code of Criminal Procedure, 1973 (Cr.P.C) .
  6.  Section 41D Code of Criminal Procedure, 1973 (Cr.P.C).
  7.  Section 313 Code of Criminal Procedure, 1973 (Cr.P.C).
  8.  Phula Singh v. State of Himachal Pradesh AIR 2014 SC 1256
  9.  Prahlad v. State of Rajasthan, 2018 SCC Online SC 2548 (Supreme Court).
  10.  Ramnaresh & Ors. v. State of Chhattisgarh, 2012 4 SCC 257 (The Supreme Court of India), Munish Mubar v.  State of Haryana, (2012) 10 SCC 464 (The Supreme Court of India), Raj Kumar Singh @ Raju v. State of Rajasthan, 2013 SCC Online Raj 2350 (The Supreme Court of India)
  11.  Section 167 Code of Criminal Procedure,1973 (Cr.P.C) 
  12.  Amrik Singh v. State of Punjab, 2000 CriLJ 4305 (P&H)
  13.  Zahira Habibullah Sheikh and Ors v State of Gujrat & Ors (2006) 3 SCC 374.
  14.  Section 163 Code of Criminal Procedure, 1973  (Cr.P.C)
  15.  D.K Basu v State of West Bengal, AIR 1997 SC 610
  16. .
  17.  Joginder Kumar v State of Uttar Pradesh (1994) 4 SCC 260.
  18.  Available at:https://ncrb.gov.in/en/crime-in-india-table-addtional-table-and-chapter-contents?field_date_value%5Bvalue%5D%5Byear%5D=2019&field_select_table_title_of_crim_value=15&items_per_page=50 
  19.  Nilabati Behera v. State of Orissa (1993) 2 SCC 746
  20.  Writ Petition No. 7042/2020 Madras High Court.
  21.  D.K. Basu v State of West Bengal, AIR 1997 SC 610
  22.  Joginder Kumar v. State of U.P. 1994 AIR 1349, 1994 SCC (4) 260
  23.  Nilabati Behera v. State of Orissa, 1993 AIR 1960, 1993 SCR (2) 581
  24.  D.K. Basu v State of West Bengal, AIR 1997 SC 610
  25.  Law Commission Report No. 273 Available at https://lawcommissionofindia.nic.in/reports/Report273.pdf 

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