When a crime is committed, there are certain rights available for the accused including but not limited to the right to be heard, the right to free legal aid, the right against torture, the right to food, clothing, medical check-ups, etc. Any person who is arrested by the police should be produced before the magistrate within 24 hours of such arrest, which is a Fundamental Right enshrined under Article 22(2) of the Constitution. During the course of investigation or detention, the accused should neither be tortured in police custody nor in judicial custody; however, there are many such instances in which they occur – either for securing a confession or to extract a false statement, in the instance of which it amounts to custodial violence. In 1993, the National Human rights commission instructed that any custodial death must be reported within 24 hours. Post-mortem reports, Magisterial Inquest reports, postmortem video reports, etc. are to be attached with the intimation.[1]
There is no provision that specifically deals with custodial violence in India. However, an attempt has been made to tackle and address the same vide provisions under Criminal Law & Procedure. These are: Section 330, Section 331, Section 376B, Section 376C and Section 348 of the Indian Penal Code, 1860; Sections 25 & 26 of the Indian Evidence Act 1872; Section 76 of Criminal Procedure Code, 1973 and Section 29 of the Police Act, 1861.
Safeguards under Indian Law
Constitution of India, 1950
Article 22 which deals with protection against arrest and detention in certain cases, enunciates that any person who is arrested should be informed on what ground he is arrested and he should be allowed to consult a lawyer[2] and provides that any person shall be produced before the Magistrate within 24 hours of his arrest[3].
The Indian Penal Code, 1860
Section 330 and Section 331 deals with Voluntarily causing hurt/grievous hurt to extort confession, or compel restoration of property.
According to these Sections, anyone who causes hurt to any other for the purpose of extorting any confession or information which leads to the detection of any offense or compels any person for the restoration of a property or to give information regarding it or any valuable security shall be punished with an imprisonment of 7 years and fine. If it is grievous hurt, imprisonment will be for 10 years.
If someone is wrongfully confined and harmed to extract a confession or compelled for restoration of property, he will be imprisoned for three years and fined under section 348 of IPC.
If any public servant or superintendent of jail abuses his power and authority and has intercourse or seduces a woman in custody shall be punishable for a term which may extend to five years and fine under Section 376B and Section 376C.
The Criminal Procedure Code, 1973
Section 76 enunciates that an arrested person must be brought before the magistrate without unnecessary delay and that the delay shall not exceed 24 hours.
Section 174 states that if any person commits suicide or dies by accident in the police custody the officier incharge shall immediately give the intimation to the nearest Executive Magistrate and shall proceed to the place where the deceased body is and an investigation of the apparent cause of death has to be done in the presence of two inhabitants.
Section 176(1) provides that when any person dies while in the custody of police the nearest magistrate shall hold an inquiry into the cause of death of the person.
Indian Evidence Act, 1872
Section 25 and Section 26 of the Act deals with confessions made to the police officer, the confessions made to the police officer cannot be proved against a person accused of any offense or oneself.
The Police Act, 1861
According to Section 29 of the Act, any police officer who:
- fails to abide by the rules and regulations of the competent authority or
- withdraws from doing his duty or
- causes any unwarrantable personal violence to any person in his custody.
Shall be punished by either penalty not exceeding his 3-month pay or imprisonment with or without hard labour for a period of three months.
[1] https://nhrc.nic.in/press-release/nhrc-issues-fresh-guidelines-regarding-intimation-custodial-death#:
[2] Article 22(1), Constitution of India, 1950
[3] Article 22(2), Constitution of India, 1950