Custodial Violence and Fake Encounters : A Radical Analysis
Author :- Advocate Siddharth Swain
There are a lot of undesirable incidents occurring in the society which people ignore or avoid but slowly and gradually these incidents take the form of acceptance and everything seems normal over a period of time. Incidents involving police brutality such as custodial violence, ill treatment, illegal detention, torture, custodial deaths, fake encounters etc. are some of them.
Violence in custody is the violence that occurs in some form in detention such as judicial and police cell where the person who committed a crime is mentally and physically tortured. A little force in order to beat the truth out of people is acceptable. However, that force should never be equivalent or more to cause death of any accused.
Custodial violence has been a practice of the society since the British days. Somewhere of the other this practice was supported by senior officials, bureaucrats, politicians and judiciary. In a democratic country like India, authoritative power has been a bane in the way police officials have used it. They have either used this power to protect and enable laws for the citizens or they have gone beyond their scope of powers to use violence as a tool to satisfy their desires. Any such death without reasonable cause shall attract the offence of culpable homicide as provided in section 299 of Indian Penal Code, 1860.
Fake encounters are essentially staged confrontations between the police or military forces and victims who the security officials believe to be “culprits”. This is basically a tool to avoid legal procedure as it means striking off someone without trial in Courts. These deaths are often termed as extra-judicial killings.
The need for laws to protect all people from torture and inhumane treatment arose for the first time in 1975 where the General Assembly of the United Nations adopted The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Convention”). On June 26, 1987 the convention (Resolution No.39/46) entered into force after being ratified by 20 countries. Since this day, the absolute prohibition against torture and other acts of cruel, inhuman, or degrading treatment or punishment has become accepted as a principle of customary International Law. India, being the signatory of the UN Convention against torture had for the first time in 2010 introduced a bill called “Prevention of Torture Bill”.
Custodial Violence in India and applicable laws
As per the date published by National Crime Records Bureau, the period between 1997 to 2007 has recorded approximately 490 deaths in custody and the eight year period between 2008 to 2016 shows 300 deaths, however, there were no convictions across the country. In 2017, there has been a spike to the record of custodial death to 1671. However, it has been claimed that out of the total deaths, 1494 has been natural deaths. In 2019, a total of 1731 custodial deaths has been recorded. This increase in custodial violence and deaths has been a matter of grave concern and have invited the attention of the Media, Human Rights Commission and the Judiciary to uphold the dignity and rights of the detainees and prohibit torture and inhumane behavior. Around 1782 cases of fake encounters were registered in India between 2000 and 2017 as per RTI report. Out of the total only 1565 cases have been disposed of so far.
The various methods used by authoritative agencies for custodial violence are as follows :
- Sexual Violence
- Physiological violence
- Physical violence
- Other torture techniques
- Article 20 of the Indian Constitution provides for the prohibition of retrospective functioning of penal provisions. It also protects arrested persons against double jeopardy and safeguards them from self incrimination.
- Article 21 of the Indian Constitution provides that no person shall be deprived of life and personal liberty except according to the procedure laid by law. Thus, the expression life and personal liberty has been interpreted by the Supreme Court to include constitutional guarantee against inhuman treatment and torture of the detainees and upholding the dignity of the people. These constitutionals provision run widely through the criminal justice system in order to preserve the fundamental rights of the arrested persons from the forceful oppression by the administrative authorities.
Protection Under Code of Criminal Procedure, 1973:
- Section 49 provides that no arrested person shall be subjected to more restraint than is necessary to prevent his escape.
- Section 57 provides that no arrested person shall be detained for more than 24 hours without appearing before the magistrate.
- Section 163 provides that no police officer shall offer any inducement, threat or promise as is mentioned in Indian Evidence Act, 1872. It also provides that no police officer shall prevent or prohibit any arrested person to make any disposition out of his own free will.
- Section 46(3) provides for the process of arrest to be made. It further provides that in case there is resistance from the accused against arrest, the police officials can use adequate force to cause the arrest. However, the police officer can also cause the death of an accused who is charged with an offence punishable with death and imprisonment for life wherein the situation involves a legitimate exercise of self defence.
Protection under Indian Penal Code, 1860
- Section 166 provides for punishment for Public servant who knowingly disobeys any direction of the law intending to cause or knowing it to be likely to cause injury to any person by such disobedience.
- Section 167 provides for punishment of a public servant framing an incorrect document with intent to cause injury etc.
- Section 220 provides punishment to a person being in legal authority to confine person corruptly or maliciously knowing that in doing so he is acting contrary to law.
- Section 330 provides for punishment for persons who voluntarily cause hurt to any other person in order to extort confession or any information which may lead to any offence or misconduct.
- Section 340 to 348 of the code constitute a group of sections dealing with wrongful restraint, and wrongful confinement and their aggravations.
- Section 376(2) deals with aggravated form of rape committed by police officers and other public servants like person in charge of hospital and women in police custody.
- Section 96 of the Indian Penal Code (IPC), every human being has the right to private defence which is a natural and an inherent right.
- Section 100 provides for the right of private defence of the body extends to causing death.
- Section 300(exception 3) provides for grave and sudden provocation leading to cause death in the exercise of private defence.
Status of the Prevention of Torture Bill, 2010
India, although being signatory of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment [adopted by General Assembly of the UN on 10th December, 1984 (Resolution No.39/46) has not ratified it yet expressing its hesitancy on certain provisions. The Indian government strongly condemned torture as a practice by the administrative authorities and hence presented the Prevention of Torture bill in 2010 in the Lok Sabha. The bill was passed to Rajya Sabha which subsequently referred the bill to a selection committee which proposed certain amendments in order to make it compliant with the UN Convention. Expanding the definition of torture, stricter punishments for violence inflicted against women and children and setting up an independent authority which would aim at investigating all activities relating to custodial violence and provide compensation to the victims were the recommendation and amendments of the Rajya Sabha Selection Committee. However, the bill lapsed with the dissolution of 15th Lok Sabha.
In 2017, the Law Commission in its 273rd report have forwarded the implementation of the “UN Convention against torture and other cruel, inhumane and degrading treatment or punishment” for serious consideration to the central government.
Supreme Court Judgements
- Rudul Sah Vs State of Bihar, (1983) 4 SCC 141 : Rudul Sah was arrested in 1953 on charges of murdering his wife. He was acquitted by an Additional Sessions Judge, in 1968, who directed his release from jail, pending further orders. Rudul Sah languished in jail for 14 years after his acquittal, until his plight was highlighted in the media in 1982 and led to the filing of the PIL on his behalf. By the time the PIL came up for hearing in Court, Rudul Sah had been released. The Supreme Court identified the jurisprudence of state liability against infringement of fundamental rights and for the first time and ordered compensation to the victim for the violation his fundamental rights (Right against Illegal Detention).
- Nilabati Behera Vs State of Orissa, AIR 1993 SC 1960: In the instant case, a letter was sent by Smt. Nilabati Behera to the Supreme Court stating that her son, Suman Behera aged about 22 years has died in police custody after being inflicted with several injuries. The Hon’ble Court treated it as a writ petition under article 32 of the Indian Constitution. The Orissa police had arrested Suman Behara for investigation involving the offence of theft and he was detained at the police outpost and the very next day, his dead body was found near the railway track. The post-mortem report indicated the cause of death to be merciless beating on his body indicated an unnatural death. The petitioner claimed compensation for the violation of her son’s fundamental right to life guaranteed under Article 21. The Apex Court spelled out the libility on the State on such cases of compensation and awarded a compensation of Rs.1,50,000 to the petitioner and also ordered the State of Orissa to initiate criminal proceedings against those who killed Suman Behara.
- D.K Basu Vs State of West Bengal : DK Basu, Executive Chairman of Legal Aid Services, West Bengal, addressed a letter to the Supreme Court of India drawing its concern to certain news about deaths in police custody. Considering the importance of the issues raised in the letter, the Supreme Court treated the letter as a written Petition. The Supreme Court has given an a set of restrictive guidelines which need to be mandatorily complied in every case of arrest and detention. Any failure in compliance with these guidelines shall result in the offence of contempt of court by the concerned police officer and also culpable to departmental action. The guidelines are :
- The right of arrested person to contact his Attorney
- Right to be medically examined every 48 hours
- Right to get his/her relative informed about the arrest
- Right to be produced in front of Magistrate within 24 hours, memo to be prepared in front of a witness
- Reason of arrest to be recorded in a diary
- the memo and the diary to be shown to the magistrate
- information about the arrest to be communicated to all districts
- the arresting officer is required to have identification and the arrested person to be informed of his right to have someone notified.
- PUCL vs State of Maharashtra case (2014) : The Apex Court dealt with writ petitions questioning the genuineness of 99 encounter killings by the Mumbai Police wherein 135 alleged criminals were shot dead between 1995 and 1997. The Apex Court subsequently laid down a 16 point guidelines as the standard procedure to be followed for thorough, effective, and independent investigation in the cases of death during police encounters. The guidelines comprised of :
- Record of tip-off : Any Tip-off received regarding criminal activity must be recorded in writing or in electronic form.
- Registration of FIR : in the event of usage of firearms by the police which resulted in the death of a person, then an FIR initiating proper criminal investigation must be registered and be forwarded to the Court without any delay.
- Independent Probe : Investigation into the death of the victim must be carried out by an independent CID team or police team of another police station.
- Magisterial Probe : In all cases of encounter deaths, mandatory magisterial inquiry must be held and a report thereof must be sent to the Judicial Magistrate.
- Information to NHRC : The NHRC or SHRC should be immediately informed about the encounter death.
- Immediate medical aid : Medical aid must be provided to the victim and a magistrate must record his statement and issue fitness certificate.
- No delay in forwarding documents : Relevant document must be immediately sent to the concerned court.
- Information to kin/relative : in the event of death of the accused, the immediate kin should be informed about such death.
- Compensation : The compensation scheme under section 357 A of Crpc must be availed for granting compensation to the deceased’s dependents.
- Surrendering weapons : The Police officer must surrender their firearms to the forensic and ballistic authorities.
- Legal aid to officer : Legal aid must be provided to the police officer.
- Grievance redressal : In the event, the family of the victim finds that due legal process has not been followed, they can make a complaint to the Session Judge at their local jurisdiction and the Court must look into the merits of the complaints.
During the end of 2019, four men in Hyderabad were arrested for raping and burning the body of a 25 year old women veterinarian. The accused were remanded to judicial custody for seven days. During this period, the four accused were taken to the crime spot early in the morning at 6.30AM to recreate the sequence of event as a part of investigation. It was reported that two of the accused snatched weapons from the police officials and opened fire on the police and tried to get away. However, in retaliation to this attack and in exercise of the right of private defence, the four accused were shot dead by the Hyderabad police officers. The NHRC Demanded a serious probe into the matter doubting it to be an extra judicial killing and many activists called it a staged murder and demanded through inquiry. However, a large population of the nation favoured such incident opining instant justice.
Recently, the death of Father and son duo killing by the police authorities in the police custody in Thoothkudi in Tamil Nadu has brought a national outrage and hustle among a large part of the population condemning such act calling it as arbitrary use of power. Allegedly, P Jeyaraj (58) and his son J Beniks (31) were arrested on June 19, 2020 allegedly for keeping their shops open at night violating the rules of national lockdown in this present pandemic situation. On the same night they were tortured and badly injured by the police officials. Later after 2 days J Berniks died and on the other day his father died. The Madurai Bench of Madras High Court took suo moto cognizance pf the matter and so far two senior officials have been suspended from service and departmental action has been taken against two chief guards of the jail.
The bogeyman, gangster turned politician Vikas Dubey based in Kanpur district of Uttar Pradesh had recently killed 8 cops when they had gone to arrest him over the offence charged with murder. He fled after killing 8 cops of the U.P Police with the help of his accomplices and around 40 teams were formed to capture him. He was found at Mahakaleshwar Temple, Ujjain, Madhya Pradesh on 9th July, 2020 and was captured by the M.P Police. However, while shifting him from M.P to Kanpur on 10th July morning, the convoy met with an accident where one of the Special Task Vehicle overturned. Allegedly, the 55 year old snatched a weapon from one of the policemen and tried to escape to the nearby fields. However, he was surrounded and was asked to surrender wherein he opened fire injuring two policemen and in the process , the police officials exercising the right of private defence shot him dead. Although the police officers claimed that they exercised their right of private defence while eliminating him , a large mass of the country including politicians and activists are condemning this incident calling it to be a staged propaganda to kill the deceased.
In recent times the procedures laid by the supreme law of land has been ignored to the such a level wherein police brutality such as custodial violence or fake encounters has been celebrated by the emotion led citizens. However, these incidents are the ultimate results of sheer abuse of authoritative power by the administrative authority wherein the officials go beyond their exercisable power limits. The question as to why such power is being abused depends on various reasons such as personal vengeance, greedy use of power, political and bureaucratic pressure, lack of faith on judiciary or maybe the instant answer to the idea of justice delayed-justice denied theory. The results of such abuse of authoritative power is wide ranging among the public. If, this abuse of power is not terminated or restricted at the present, then the nation might fall prey to despotism in near future.
These cases of brutality are celebrated (encounter of Hyderabad rape accused) at one part and are violently condemned (Jamia Islamia police brutality) on the other part. It is true that the public accepts and approves these undesirable and unfortunate incidents as the story dies its natural death being buried in the spate of other events over a period of time.
The prima facie situation which compels killing of a person while exercising the right of self defence and willfully designing a situation with the sole intention to kill a person without any liability is wholly converse. The latter, though anti-ethical and unlawful is mostly operated to achieve the outcome in a short period. The Police deceits the law with the sole excuse of self defence which is seldom true and ultimately escape penalization. It is pertinent to acknowledge that justice should not be served on the basis of public sentiments but it is to be served by abiding the laws of the land, without surpassing the limits of their power. Police brutality continue unabated even today with the numbers steadily rising each year, therefore, it is imperative that constitutional courts should interpret the provisions of Article 20, 21 and 22 so as to ensure that the dignity of public is right upheld and the rule of law is preserved. It is the utmost need of the hour and is the responsibility of the Government of India to legislate upon Prevention of Torture bill, 2010 and reform existing laws so as to minimize police brutality.
Like!! Thank you for publishing this awesome article.