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The legal issue of Custodial Violence in India


The term “custodial
” has not been defined under any law. It is a combination of two
word custody and violence. The word ‘custody’ implies guardianship and
protective care. Even when applied to indicate arrest or imprisonment, it does
not carry any evil symptoms during custody. In a law dictionary the word
‘custody’; has been defined as charge and with regard to a person in
imprisonment: judicial or penal safekeeping. As Per Chamber Dictionary, the
condition of being held by the police, arrest or imprisonment is called ‘custody’.
As Per Legal Glossary Dictionary, custody is imprisonment, the detaining of a
person by virtue of lawful Power or authority.

Section 167 of the Code of Criminal Procedure speak about two type of custody
i.e. police custody and judicial custody. As per section 167(1) of Cr. P.C.,
“the magistrate to whom an accused person is forwarded under this section may
whether he has or not has jurisdiction to try the case, from time to time,
authorize the detention of the accused in such custody as he may think fit.
Provided that the magistrate may authorize the detention of the accused person,
otherwise than in the custody of the police, beyond the period of 15 days if he
is satisfied that adequate ground exist for doing so. So as per section 167 (1)
of Cr. Pc. 'police custody' can be granted for a maximum period of fifteen days
only' Police custody basically means police remand for the purpose of
interrogation. In law actually a police officer has two occasion to keep a
person in its custody firstly, from the period when he arrest a person till he
produce the said person in the court i.e. first 24 hours of the arrest of
accuse. Secondly, when police gets, remand from court after producing the
accuse in the court which can be extend up to a maximum period fifteen days,
thereafter, a person is sent in judicial custody which in general terms means
jail or prison, where an accuse remain in custody till he gets bail or if
convicted and sentenced to jail till the completion of sentence. As per law,
‘custody’ of a person begins when the police arrest him.

Other type of custody as mentioned earlier is ‘judicial custody’ which means
sending a person in jail or prison. As per section 3 (1) of ‘The Prison Act,
1894’, ‘Prison’ means any jail or place used permanently or temporarily under
the general or special order of a State Government for the detention of
prisoners and include all land and building appurtenant thereto, but does not

(a) Any place for the confinement of prisoners who are exclusively in the
custody of police; or

(b) Any place specially appointed by State Government under section 541 of the
old Criminal Procedure Code, 1882,

(c) Any place, which has been declared by the State Government by general or
special order to be subsidiary jail.

The term ‘violence’ is the state or quality of being violent, excessive
unrestraint or unjustified force, outrage perforate injury. ‘Violence’ in its
literal sense has been defined as the use of force by one person over another
so as to cause injury to him. The injury may be physical, mental or otherwise.
The simple definition of violence is behaviour designed to inflict injury on a
person or damage to property. Custodial violence is a term, which is used for
describing violence committed against a person by a police authority. Thus,
custodial violence can be defined as “an inhuman trait that springs out of a
perverse desire to cause suffering when there is no possibility of any
retaliation; a senseless exhibition of superiority and physical power over the
one who is overpowered.” According to Law Commission of India, crime by a
public servant against the arrested or detained person who is in custody
amounts to custodial violence. According to Dr. S. Subramaniam, “Any use of
force threat psychological pressure is termed as custodial violence. According
to Justice B.P. Jeevan Reddy, “Custodial violence includes torture, death, rape
and excessive beating in police custody”.

Although, overcrowding, malnutrition, unhygienic conditions and lack of medical
care are some of the factors of death in police and judicial custody, but
custodial violence remains the common cause of deaths in prisons and lock-ups.
The custodial violence is a generic term and includes all and every type of
torture, third degree, harassment, brutality, use of force not warranted by
law, etc. custodial violence include illegal detention, arrest which is
wrongful or on illegal or on insufficient grounds using third degree method, on
the suspects, humiliating them, using filthy language, not allowing them to sleep,
extorting confession under pressure, padding up of additional evidence, misuse
of the power regarding handcuffing not allowing to meet counsel or family
member to accuse, denial of food etc. However since the torture or third degree
in the most common and prominent form of custodial violence by the police.

The police officials commit an act of violence upon the persons in their
custody under the guise of investigation and interrogation. The heinousness of
this crime is that it is committed upon the citizens by the very person who is
considered to be the guardian of the citizens. It is committed under the shield
of uniform and authority within the four walls of Police Station or lock up,
the victim being totally helpless in these circumstances. The protection of an
individual from torture and abuse of power by police and other law enforcing
officers is a matter of deep concern in a free society.

The chances of violence committed by police on persons in its custody are much
greater than any other form of violence. The basic reason behind it is that the
victims of such violence are unable to protest against it. The police officers
use their official position to manipulate evidences against themselves. Death
in custody is generally not shown on the records of the lock-up and every
effort is made by the police to dispose of the body or to make out a case that
the arrested person died after he was released from jail. Any complaint against
torture is not given attention because of ties of brotherhood. No direct evidence
is available to substantiate the charge of torture or causing hurt resulting
into death, as the police lock- up where generally torture or injury is caused
is away from public gaze and the witnesses are either policemen or co-prisoners
who are highly reluctant to appear as prosecution witness due to fear of
retaliation by the superior officers of the police.

However, in spite of the Constitutional and Statutory provisions contained in
the Criminal Procedure Code and the Indian Penal Code aimed at safeguarding
personal liberty and life of a citizen, the growing incidence of torture and
deaths in police custody has been disturbing. Experience shows that the worst
violations of human rights take place during the course of investigation when
the police, with a view to securing evidence or confessions, often resort to
third-degree methods including torture and techniques of arrests by either not
recording them or describing the deprivation of liberty merely as
"prolonged interrogations". A reading of the morning newspapers
carrying reports of dehumanising torture, assault, rape and death in police
custody or other governmental agencies almost every day is, indeed, depressing.
The increasing incidence of torture and death in custody has assumed such alarming
proportions that it is affecting the credibility of the rule of law and the
administration of the criminal justice system. As a result the society rightly
feels perturbed. The society’s cry for justice becomes louder.

Any form of torture or cruel, inhuman or degrading treatment, whether it occurs
during investigation, interrogation or otherwise needs the severest
condemnation. If the functionaries of the Government become law-breakers, it is
bound to breed contempt for the law and no civilised nation can permit that to
happen. Custodial violence may be both physical and or mental. It may also
consist of gross negligence or deliberate inaction. In a case, when a person
was suffering from high blood pressure or similar type of disease, almost for
which continuous medicine is essential, and he is not allowed to take medicines
the men develop serious health problem or dies. The Apex Court held it to be a
case of custodial violence and the State was made liable for damages for their
gross negligence in protecting the person in custody.

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