The Supreme Court has expressed its concern for custodial commission of crimes during investigation and interrogation and laid down certain principles to be followed by concerned police officers in its historic decision in D. K. Basu v. State of West Bengal. The basic “requirements” to be followed in all cases of arrest or detention till legal provisions are made in that behalf to prevent custodial violence are as follows:
(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) The police officer carrying out the arrest shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness who may either be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and contain time and date of arrest.
(3) A person who has been arrested or detained and being held in custody in a police station or interrogation or lock-up, shall be entitled to inform his friend/relative or a person having interest in his welfare, as soon as practicable, that he has been arrested and is being detained at a particular place, unless the attesting witness of the memo of arrest is himself such friend/relative.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police.
(5) The person arrested must be made aware of his right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention giving all details, about the friend/relative or person informed.
(7) The arrestee should, where he so requests, be also examined at the time of arrest and major and minor injuries, if any present on his/her body, must be recorded at that time. The ‘Inspection Memo’ should be signed both by the arrestee and the police officer effecting arrest.
(8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody.
(9) Copies of all documents including memo of arrest, should be sent to the Illaqua Magistrate for his record.
(10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
(11) A police control room should be provided at all district and State Headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest within 12 hours of effecting the arrest and this should be displayed on a conspicuous notice board at the police control room.
The Apex Court opined that failure to comply with the above requirements will render the officer concerned liable to be punished for contempt of Court besides the usual departmental action against him.
The Court in this case condemned the tortuous methods adopted by the police and observed:
“Torture has not been defined in the Constitution or any other penal laws. Torture of a human being by another human being is essentially an instrument to impose the will of the ‘strong’ over the ‘weak’ by suffering. The word ‘torture’ today has become synonymous with the darker side of human civilization and custodial violence including torture and death in the lock-up strikes a blow at the rule of law.”
The Court noted that these directives would help to curb, if not totally eliminate, the use of questionable methods during interrogation and investigation leading to custodial violence.
Complyingw with the directives of the Supreme Court given in D.K. Basu, the High Court of Calcutta laid down stipulations to be followed by the State Government of West Bengal in order to prevent, check and monitor custodial violence.
Since custodial violence and torture involves serious breach of human rights, the Government of India finally came out with the Protection of Human Rights Act, 1993 with a view to preventing human rights violations and combating torture cases. The Commission has issued instructions and held meetings of District Magistrates and Police Superintendents from time to time to initiate adequate measures to prevent custodial torture and protect the innocent persons from the violation of their basic rights.
Emphasising the need to implement the recommendations of the Law Commission in its 113th Report as to amendments to Evidence Act, 1872 and Courts to change their outlook, approach, appreciation and attitude towards the cases involving police torture, the Supreme Court in Munshi Singh Gautam & others v. Slate of Madhya Pradesh, reiterated that Courts should exhibit more sensitivity and adopt realistic rather than narrow technical approach to the problem.
This case involved death in police custody due to beating by police official in order to extract confession. Quoting Abraham Lincoln, Mr. Justice Arijit Pasayat, in this case observed, “If you once forfeit the confidence of your fellow citizens you can never regain their respect and esteem.
It is true that you can fool some of the people all the time, but you cannot fool all the people all the time.” While deprecating custodial torture, by the police, the Apex Court had made similar observation in the earlier decision in (Smt.) Sakila Abdul Gafar Khan v. Vasant Raghunath Dhoble and in Raghubir Singh v. State of Haryana’s case.
The Court noted that custodial violence, torture and abuse of police power is not confined to a particular country but it is wide spread and concerns international community because of its universal nature. Despite pious Declaration of Human Rights, 1948, the crime continues unabated though every civilised nation makes efforts for its eradication.
The right to life and liberty as enshrined in Article 21 of the Constitution provides an in-built guarantee against torture or assault by the State functionaries. Articles 20(3) and Article 22 of the Constitution further manifest the constitutional protection against illegal arrests and torture.
Despite all that, the dehumanising torture, assault and death in custody raise serious questions about the credibility of rule of law and administration of criminal justice system. Dismissing the appeal the Court upheld the conviction of the appellant under section 304, Part II of IPC.
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