Magisterial Inquiry in respect of Custodial Death and Rape: Reasons and Requirements

Author: Sneha Saha


Custodial death is one of the most exceedingly terrible wrongdoings in a humanized society represented by the Rule of Law. In India where law and order are inborn in every single activity and right to life and freedom is valued and considered to be the most essential right decorating most elevated spot among immensely significant central rights, like torturing and utilizing third-degree techniques upon suspects during unlawful imprisonment and police remand projects a slur on the actual arrangement of organization. In custody torture, violence, and rape by police have been a major issue for quite a while. Numerous such occurrences have expanded over the years in many pieces of the world and also in India. It’s undeniably true that police resort to third-degree techniques for acquiring admissions and explanations from the charged. But such a way is regularly bringing about harm and even death. This reality is incapable to bear such torment and embarrassment, this push victim to end their life.

Research Question

Does a resident shed off his major right to life, when a cop arrests any person? Can the right to life of a resident be placed in cessation on his arrest? Does the judiciary provide proper laws and punishment for such offence? The appropriate response, for sure, must be an unequivocal ‘No’; it involves ethics and equity. To discuss something similar, there are laws put in a request to keep away from any such conditions and to keep control.


An individual is in authority where a person is under the consideration, management, and control of someone else or organization known to be the custodian. The custodian has an outright or a serious level of command over the individual, including portability, freedom, food and water, contact with the rest of the world, and such. This relationship of control and reliance projects a solid obligation of care and insurance on the custodian. Rape, under such conditions, is an undeniably more genuine infringement, since the assailant exploits his situation of authority over the lady, disregarding her real honesty as well as the obligation to mind and ensure. Individuals typically catch the term custody with the word arrest, and it implies under strict supervision. Subsequently, an individual under police authority is additionally expected to be treated with full poise. This brings up an end number of issues when we see news concerning custodial death, disappearance, and rape.


The main aim of this paper is how magisterial inquiry is mostly required in this scenario and also there are laws under CRPC to it expresses that any such awful crime will not happen. This effectively shows that any a blamed under the custody for the police whenever found to have an unnatural demise, vanishing or rape, guarantees security and the severe consistency of custodial passing’s by the National Human Rights Commission (NHRC) takes high importance on its plan.

Custodial death and rape

Custodial death is incidents of the destruction of people who are kept by police during pretrial or after conviction. Custodial death can be comprehensively portraying like death in police custody; death under public servant; and death in the authority of armed force or military power.

Custodial rape takes place when the rape is done by the person under whose custody the woman is. The person who keeps under his supervision holds a quite strong powerful position. And when they misuse their stance to sexually assault women it is considered to be a serious crime. Mainly the person who is punished for committing such offense in the custody is a policeman, public servant, and also manager or staff of jail, hospital, and remand house. 

So, this custodial death and rape is broadly alluded to as death that happens to an under individual preliminary or has effectively been indicted for a committing crime. It very well maybe because of normal causes like ailment or may likewise occur because of self-destruction, infighting among arrest person however in many cases, it is police cruelness and torture is that for the explanation for the death. The issue is exceptionally dubious and convoluted. Custodial deaths and rape are perhaps the most elevated type of infringement of their basic rights. It is a dull assault on the right to life and freedom ensured by the Indian Constitution. People blamed for or sentenced for violations are qualified for a reasonable preliminary, wellbeing, and security in police and legal lock-ups and remand homes. Though the law-implementing regularly flop wretchedly in releasing their sacred commitment and what is much more terrible is that terrible incidents occur, there is a hard and fast exertion from the culprits to conceal their offenses. The Government plays a major part in securing the charged officials.

Reason for the rise of custodial death

The purposes behind the ascent in custodial death are a complex phenomenon. The police must take care of the safety and security of a kept individual under their authority. The Human Rights Commission should be educated within 24 hours on account of custodial death and 48 hours of killing in the encounter. As indicated by the National Crime Records Bureau (NCRB), there were jail reports of the NCRB where it was express that an aggregate of 1000 individuals from which few died due to natural causes some unnatural causes and the rest from obscure causes since the states were also not interested about uncovering the subtleties. The report says that a regular and unnatural demise however there is frequently nothing normal about this death and the unnatural death is a result of the inadequacy of the state and legal offices. They neglect to give appropriate medical services and security to the prisoners. Self-destruction is perhaps the most compelling motivation for custodial death. In India, there is no sufficient way for prisoners and under-trial individuals looking for mental assistance and this influences their psychological wellness incredibly. Consequently, it is basic that they ought to have better admittance to mental help and better preventive measures should be executed. The security of prisoners ought to be one of the top worries of reformers and policymakers. A ton of assaults occur inside the jail between prisoners which regularly end up being lethal. An individual under guardianship loses the greater part of his privileges including the right of free development and the option to pick their favoured clinical consideration. This adds to their psychological distress.

Custodial death that happens on account of police fierceness is maybe the main justification for the expansion in numbers. Our society exists inside a circle of duality concerning its view of women. On one hand, we depict women as goddesses who are loved yet then again, we enslave them and push them to the destructive edges of society. We live in a general public where a young girl isn’t permitted to carry on with her life. Here in India ladies are simply utilized as an article for joy or the family works. There are loads of provisos in the framework which were distinguished and abused. These escape clauses and the abuse of the forces were the reason for rapes. The police are engaged by the state to implement laws and keep everything under control and security. They don’t reserve the option to take the law in their grasp however they see fit. Tormenting a blamed or raping a prisoner is a gross infringement of the forces presented on them. In any case, it is expanding throughout the long term. It can be said that there are significantly more cases that don’t get detailed and come to light. But few couples of them come to the yearly reports, others get covered under managerial concealments.

Legal provision against custodial death

According to the Indian Constitution and the lawful system give different shields against custodial injustice:

Protection against Conviction or Enhanced Punishment under Ex-Post Facto Law: Article 20(1) of the Constitution of India gives that, no individual will be sentenced for any offense aside from infringement of the law in power at the hour of the commission of the demonstration charged as an offense, nor be exposed to any greater punishment than that which may have been exacted under the law in power at the hour of the commission of an offense.

Protection against Double Jeopardy: Article 20(2) of the Constitution expresses that no individual will be prosecuted and punished for a similar offense more than once.

Right not to be a witness against himself: Article 20(3) of the Constitution gives that no denounced individual will be constrained to be a witness against himself. This is vital as it goes about as a defend in getting proof from the denounced through compulsion and torture.

Section 179 of IPC, each individual lawfully will undoubtedly express facts regarding any matter to a local official. Section 161 of the Code of Criminal Procedure, 1973 likewise empowers the police to inspect the charged during an examination. Section 163 of the Code of Criminal Procedure, 1973 restricts the researching officials from making any affectation, danger, or guarantee under Section 24 of the Indian Evidence Act (1872) yet additionally keeps him from constraining any individual to offer any expression which he might want to make on his through and through freedom. Section 24 of the Indian Evidence Act, 1872 makes all admissions made under incitement, danger, or guarantee forbidden. The section gives the charged the right not to make any admission without wanting to as it is surely known that if such proof is made acceptable, it will go about as a trigger for the police to utilize torture and power to extricate proof against him.

Section 164(4) of the Code of Criminal Procedure, 1973 accommodates recording and mark of admissions in a legal way and support of the admission by a judge such that it has been made deliberately.

Section 348 of the Indian Penal Code, 1860, among others, sets down arrangements identifying with illegitimate confinement and precludes such repression for coercing any admission or data for recognizing any offense or wrongdoing. Such unfair restriction has been made a culpable offense with imprisonment as long as three years is likewise responsible for fine.

Sections 25 and 26 of the Indian Evidence Act, 1872 give shields to the blamed on similar lines. Section 25 expresses that no admission made to a cop can be utilized to demonstrate any offense against him. Section 26 makes all admissions made during authority forbidden except if made in the quick presence of a Magistrate. In such a manner, the Supreme Court has anyway brought up that the blamed, whenever compelled to give an admission under this section, can utilize his advantage against self-implication contained in Article 20(3) of the Constitution.

Article 21 of the Constitution of India (Right to Life and Personal Liberty) doesn’t explicitly say anything against custodial torture yet its ambit is very broad. These right expresses that no individual will be denied life or individual freedom besides as per the strategy set up by law. The right incorporates protected assurance against torture, attack, assault, or injury and subsequently goes about as a shield against custodial torture and brutality.

Article 22(1) of the Constitution of India gives the arrestee the option to get data on the grounds of his arrest and gives him the option to counsel a lawful specialist of his decision to protect him that is right to be informed of the ground of arrest. Section 50 of the Code of Criminal Procedure, 197, gives a comparable right to the arrested person and gives him the option to look for bail. Section 49 of the Code of Criminal Procedure, 1973 is likewise a defend against custodial overabundances. It expresses that an arrested person will not be exposed to more limitations than is needed to forestall his break. Section 50A of the Code of Criminal Procedure, 1973 makes it occupant upon the police to give required data identifying with the arrest of a person. Section 55A of the Code of Criminal Procedure, 1973 makes it compulsory for the individual under whose authority, the blamed is confined to focus on safety and security. Section 75 of the Code of Criminal Procedure, 1973 accommodates unveiling the substance of the warrant to the arrested individual and in any event, showing it to him, whenever required.

Article 22(2) of the Constitution of India furnishes the arrested individual with the chance of a speedy trial. An arrestee must be made before the nearest officer inside a time of 24 hours of such imprisonment needs the endorsement of a judge. This right consequently permits him to look for discharge on bail, reveal his complaints, assuming any, emerging out of any abuse dispensed to him in care, and an autonomous test of the legality of his detainment. Section 56 and Section 57 of the Code of Criminal Procedure, states exhaustively about these rights. Section 167(2) of the code likewise makes it occupant upon the said judge to approve further confinement of the charged, just if he has been delivered before him face to face.

Importance of Code of Criminal Procedure, 1973 (Section 176)

Under Section 176 of Crpc where 1(A) was revised, it expresses that where any person under the custody of the police dies, disappear, or is supposedly raped, ought to be asked by either the justice or the court and an examination by the police ought to be held. Various laws are ensured the privileges of an individual, notwithstanding, considering late occasions where the instances of police brutality and custodial death have expanded, there has not been a lot of data accommodated something very similar, and relatively few examinations have occurred on schedule, or have been subsequently given off to offices like the CBI or for examination groups which have made it hard to resolve. This by itself upsets the request in the general public as custodial death is the only crime against law enforcement. 

Section176 appeared and was named as one of the most significant things which are executed in the revision act. Custodial rape, death, or disappearance was gotten light and was given the importance these horrifying offences merit. The ability to hold examinations falls on the Executive Magistrate as well as on the Judicial Magistrate alongside a police examination on the equivalent. Under section 1A, the raped victim or the perished is to be sent for assessment within 24 hours of the detailing of the episode, which could assist with giving a superior comprehension of what occurred, be that as it may if for reasons unknown it is preposterous to expect to do as such, it will be given recorded as a hard copy expressing every one of the facts and cause. With this, it can concur that violations like such are not turned away. This elevates the voice of many individuals confronting shamefulness in the custody. It is expressed by the Supreme Court in any case, if a police officer is seen as blameworthy of denying any person under authority his essential thing rights, the victim can take the issue to the Supreme Court under Article 32.

National Human Rights Commission in case of custodial death

National Human Rights Commission is the epitome of India’s anxiety for the advancement and security of basic freedoms. Custodial brutality is perhaps the maltreatment against common liberties, the Commission, before long its constitution, given point by point guidelines to the law authorization experts on detailing of death in police lock-ups and restorative homes. It commanded revealing of custodial death by the DMs and SPs of the regions, inside 24 hours of the event of death. Videography of post-mortem was likewise made required. The justification of the issue of this guidance should be inspected. With the rising episodes of custodial death and thought that there were intentional endeavours by the police to conceal torture and abundances submitted by them. There was a conscious endeavour to smother reality. The specialists leading the post-mortems were being affected by the police and they were not directing assessments appropriately. They surrendered to police pressure. A post-mortem is perhaps the main way to discover the genuine justification of death however the thing that was being accounted for was just the police form of the reason for death. In this way, the post -mortem, rather than illuminating the reason for death, assisted with concealing custodial torture bringing about the demise of the person in question. With no external autonomous proof, the destiny of the case relied altogether upon the perceptions recorded and the assessment given by the person in the post-mortem report. Further, as a proportion of additional alerts, the commission made changes in the examination model and the cycle of the authoritative investigation. Itemized conventions, on the way of announcing actual changes happening because of torture, were likewise set somewhere around the commission.

NHRC has squeezed the police as there is consistently a dread in their psyche that they can be held up any time. The Commission doesn’t depend upon police reports just and it additionally gives a great deal of significance to objections got from the relatives of the person in question. The interaction of videography, post-mortem and legal inquiry has likewise made the cycle more straightforward and for who is constrained for law implementation to be more cautious.

Judicial views

The Supreme Court understood that rights without cures are of no utilization and thus law authorizing authorities ought to be made appropriately responsible.

Munshi Singh Gautam vs State of Madhya Pradesh[1], the high court held in this case was, the dehumanizing torture, assault, and death in custody which have expected disturbing extents bring up difficult issues about the credibility of law and order and organization of the criminal equity framework the worry. The torture is done in the instances of Bhagwan Singh v State of Punjab, Pratul Kumar Sinha v State of Bihar, State of MP v Shyamsunder Trivedi and the at this point commended choice in the milestone instance of D K Basu vs Province of West Bengal appears not even to have brought on any conditioning of disposition in the cruel methodology in managing people in custody.

Rameeza Bee’s case in this case during the Commission’s procedures, the police shielded the assault and murder, by addressing Rameeza Bee’s person. They drove proof to demonstrate that Rameeza Bee had been hitched a few times, that her union with Ahmed Hussain was not substantial and she was unethically living together with him, and that, she was a sex specialist who was captured for requesting. The Commission saw the police was liable for assault and murder and suggested that they be indicted. The trial started in the adjoining province of Karnataka, to which it was moved. Accordingly, in any case, the police were acquitted by the court on the ground that proof recorded before a Commission of Inquiry was unacceptable.

Yashwant And Others vs State of Maharashtra[2], the Supreme Court held in this case about the police inquiry of 1993 custodial death case and broadened their prison terms from three to seven years each. Allegedly, a seat of Justices NV Ramana and MM Shantanagoudar maintained the request and said that events that include the police will in general dissolve individuals’ trust in the criminal equity framework. While improving the jail term of the police, the apex court said that with incredible force comes more prominent obligation. The police workforce was seen as liable under Section 330 of the Indian Penal Code which includes deliberately making hurt blackmail admission or to propel restoration of property.

D.K. Basu Versus State of West Bengal,[3] in this case the Court held a Constitutional and Statutory Safeguards to be continued in all instances of arrest and confinement according to the 11 rules are as per the following: –

All the details of staff dealing with the cross-examinations of the arrested person should be recorded in a register. An update of arrest at the hour of the arrest ought to be the plan. It should likewise be endorsed by the prisoner and should contain the time and date of the arrest. Police should tell a prisoner’s time, place of detainment, and place of authority. Police of the influenced region electronically inside the time of 8 to 12 hours after the capture. An entry should be presented in the case diary at the spot of confinement. The examination memo should be endorsed by both the prisoner and the arrested person and a duplicate should be given to the prisoner. The prisoner should go through a clinical assessment by a prepared doctor at regular intervals while in the custody. All things considered, including the arrest memo, should be shipped off the Magistrate for enrolment. Data about the arrest and the place of custody of the arrested, within 12 hours after the arrest and in the Police Control Room Board, should be shown on an apparent notification board.


The Police power in India, appreciate incredible exemption and all Governments don’t want to set priority by giving out excellent disciplines to the culpable officials for the straightforward explanation that the running of any Government relies extraordinarily upon the law-authorizing authorities. They are the arms of the Government who go about as its investigator and offer significant support to their political experts. No administration might want to disappoint them. The Executive neglects to understand that the genuine force radiates from individuals, and the police, paramilitary, and armed force, are only community workers. The connection between the culprit and casualty in instances of custodial assault is the one where the culprit as of now projects an unnecessary impact over the person in question. In this way, assault under such conditions represents a considerably more prominent danger to the person in question and leaves her under tremendous injury since the police assault her real trust as well as his obligation to mind and secure her. The reality of the custodial assault and torture which had effectively been perceived by officials since the punishment for brutality and assault in police custody was more than different cases of rape. To comprehend the manner of thinking behind fierceness is significant, what is most essential is to comprehend why these abominable violations occur and how can be dealt with stay away from them. Better preparation and comprehension of outcomes ought to be given to the police authorities, laws ought to be made more understood, examination ought not to be messed with. Even though to have a reasonable and sound criminal equity framework is far, little and basic changes would achieve a huge contrast.


[1] Munshi Singh Gautam (DEAD) and OTHERS v. state OF M.P …, (last visited Aug 13, 2021).

[2] Staff, Yashwant vs the state OF Maharashtra on 4 September, 2018 Tax Keeda (2018), (last visited Aug 13, 2021).

[3] D.K. Basu v. state of West Bengal (1997) 1 SCC 416, CuriousForLaw (2020), (last visited Aug 13, 2021).