Source : iPleaders Blog

This Article has been authored by Vasanth .S, a fifth-year law student at Symbiosis Law School, Hyderabad

Custodial death is definitely not a new chapter in books of violation of Human Rights. But, the non-stop brutality by the custodians of law and the recent Lockup Death of Father son duo[1] at Sathankulam, keeps this issue contemporary.

SALUS POPLI EST SUPREME LEX- safety of the people is the supreme law.


Custodial Death is one of the greatest violations of Human Rights and Fundamental Rights provided under Part-III of Indian Constitution.[2] Soon after the Independence of India, the system of “police state” was abolished, which used to provide Sovereign Immunity to Police officials and the system of “Social Welfare State” was established. Welfare state promotes Equality before Law and prohibits unequal treatment as mentioned in Article 14 of the Indian Constitution.[3]This Welfare State governs the administration with checks and balances. Despite this system, there is abuse of power and authority by the Police. It has been reported that 1723 Custodial Deaths have occurred in India in the year 2019, as per the report of National Human Rights Commission (NHRC)[4]. In the month of July, 2020 185 Custodial Deaths and Encounters have taken place[5]. The police officials try to evade the charges against them by giving various reasons such as the occurrence of an encounter as their defence. Not only Custodial Deaths, but also there are several Complaints and reports of Custodial Torture, Custodial Gang Rape, fake encounter etc.[6] Custodial Deaths and tortures are not confined only to police and Judicial Custody but also reported in many other authorities which have the power to detain a person. In the year 2019, the NHRC alone has ordered to pay compensation of Rs.10,05,85,000 in 391 reported Human Rights Violation Cases[7]. There are cases of Custodial deaths reported in cases of Denial and poor medical Treatment to the prisoners.[8]

Statutory and Custitutional provisions to curb provisions to curb down custodial violences

The Indian Constitution provides certain rights to safeguard the accused and the prisoners from unfair and unjust treatment by the officials. Article 14 of Indian Constitution provides Rights to Equality, which is, Equality before Law and Equal Protection of Law.[9] Article 20[10] (3) talks about Protection against Self-incrimination i.e., “NEMO TENETUR PRODERE ACCUSSARE”- nobody can be made to accuse himself, which is enlightened in case of Nandini Satpathy V P.L Dani[11], where the Supreme Court has said where “Compulsion includes Physical and Psychological compulsion”. In most of the cases, where the police is not able to find the real Culprits and due to pressure from influential people to hide their acts, accused are forced to be made witnesses against oneself. This scenario is well explained in the novel “Lockup” written by M.Chandrakumar and which was later made into a National Award Winning movie named “Visaranai”[12]. Article 21[13] of the Constitution confers the Right to Life and Personal Liberty, which cannot be suspended even during National Emergency. Right to life means Right to live with human dignity, which is also extended in Article 22[14]. Article 22 talks about Protection against Arrest and Detention[15]. Here, Protection against Punitive- (Article 22(1)[16] and (2)[17]) and Preventive – (Article 22(5)[18]) detentions are mentioned.

The ‘rights of an accused’ is synonymous to ‘rights of an individual’ as the law presumes the accused is innocent until their guilt is proven. This presumption is in connection to the individual’s fundamental rights and principles of natural justice. Therefore, it is necessary to ensure that the rights of accused are not denied or infringed in any manner.

The fifth chapter of the The Criminal Procedure Code, 1973 (hereinafter referred to as “CrPC”) provides for the arrest of a person.[19] The Code sets down grounds and the procedure to arrest along with granting protection to those under arrest. Section 49 provides for protection of the accused by keeping a check on the restraint of the arrested. The arrested are restrained with the sole objective to prevent their escape and this Section ensures that there should not be more restraint than necessary.[20] Section 54 in CrPC provides for the right of the arrested to consult a medical practitioner or health examiner at any point that the arrested requests. This is to ensure that there has been no offence done to his/her body while such person was arrested thereby, guarding the principle of justice.[21] Section 46 (3) of the CrPC, states that “No officer in charge of the arrest of an accused has the right to cause the death of a person, who is not accused of an offence punishable with death or with imprisonment for life.[22] The same principle was applied in the case of Dakhi Singh vs State[23] where a thief was arrested by a police constable and was being taken in a train. The thief escaped from a running train. The constable pursued him. When the constable was not in a position to arrest him, he fired at him. But, in that process, the shot hit another person and he died.

Here the Supreme Court referred to Section 46, of CrPC , which provides that “When a police officer arrests a person and such person forcibly resists the endeavour to arrest him or attempts to evade the arrest, such police officer may use all means necessary to effect the arrest; but this does not give a right to cause the death of the person unless he is accused of an offence punishable with death or imprisonment for life.[24]

The Police Act, 1861 is an act that helps regulate the power of the police officers. The Section 7 to Section 29 of the Police Act regulate the power, position, removal and work of the officers.[25] One of the most important measures to protect the arrested is, Section 331 of the Indian Penal Code, which makes an act that voluntarily causes hurt or harm to an individual to extort a confession or admission, a cognizable and non-bailable offence, punishable under the Code.[26]

At the same time, there are several statutory provisions which provide immunity to the Police and other Government officials such as Section 197[27] of the CrPC which provides immunity to members of the judiciary, public servants and armed officers and therefore the court cannot take into cognizance, an offence in which they are accused unless they get sanction from the central government or on grounds as mentioned in the Code.

Section 132 of the CrPC[28] also grants protection to those officers, public servants, armed force and other authorities from Section 129, Section 130 and Section 131 of the CrPC to disperse assemblies of people, provided they act in good faith.[29] In the case of Ram Adhar Yadav v. Ram Chandra Misra,[30] it was decided that Section 132 is not affected by Section 465 and the absence of sanction under section 132 is not curable by section 465 and where police personnel had no intention to commit any crime like taking away his property against the complainant, prosecution without prior sanction as required by section 132 and section 197, is not maintainable.[31]


The Indian Judiciary has now and then intervened in the arbitrary acts of the detentions made by the authorities and interpreted the law in order to safeguard the rights, lives and modesty of the accused and prisoners


- Justice Krishna Iyer.

The Government officials and the Police used to make use of sovereign immunity as a shield for criminal Acts committed by them. But it was in the case of Rudhul Shah V. State of Bihar[32], for the first time, the Supreme Court awarded Compensation for illegal detention of the Plaintiff for 14 years. In the case of Chella Ramakenda Reddy V. State of Andhra Pradesh[33], an accused was dead inside the Custody due to a fire Accident. Thus the Supreme Court held that the police should be held responsible for the safety of the prisoners with reference to “Sec-55A CrPC- Health and safety of arrested person—it shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused”.[34] In the case of Nilabati Behra V. State of Orissa[35], the Supreme Court granted a compensation of Rs.1,50,000 to the mother of the Victim of Custodial Death and has also referred to the Article 9 (5) of International Covenant on civil and political Rights, 1996, which provides that “Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation[36]. This case has also mentioned three important points regarding Compensation to the Victim:

The state is under Obligation to provide Compensation to the Victim or his heirs for the Acts of its agent.

It is the Right of the State to recover the paid compensation from the particular agent.

The Victims can also further claim compensation in a Civil Case.

Due to increasing custodial violence and deaths, the Supreme Court in the case of PUCL V. State of Maharastra[37], has provided certain guidelines for the Investigation.

It was in the Case of Prakash Singh and Others v Union of India and others[38], the Supreme Court ordered every State Government to establish a Police Complaint Authority (PCA). There have been several cases where Cases were not reported against a police officer in the Police Station, thus in order to counter such problems, this method was brought in.

In the case of D.K.Basu V. State of West Bengal[39], the Supreme Court introduced the concept of Arrest Memo and Inspection Memo to provide information regarding the arrest to the family and for the Welfare of the person detained or arrested.

In all such cases, there is more protection being given to the Prisoners. The extracting of information from the Accused may be really hard and challenging for the Police to report to the Judiciary or their higher Officials within a particular span of time. There are certain methods which are followed by the Police to extract information. They are Polygraph, Brain Mapping, Lie Detector test etc. In the case of Smt. Selvi V. State of Karnataka[40], the Supreme Court has provided the guidelines as to how such methods should be followed to get information from the Accused or Prisoners. The option to undergo such tests is still with the Accused.


The Police Department is controlled by The Police Act, 1861[41], which was established by the British to rule the British India. The main objective of the Police was to safeguard and protect the English men and see that the Indians were kept under control. In the present scenario, though different states have their own State Police Acts, they still follow the same old model of The Police Act, 1861[42].

In order to improve the quality of Police administration, there should be reforms. These reforms should be focused on reforming the very process of training and education of police officers because, in India, Police officers themselves do not realise and understand the true meaning of being a part of the department. These positions are glorified unnaturally through the media, thereby imparting a wrong notion as to being a police officer. So, before joining the police force, it is very important that a candidate has enough and more knowledge regarding the position they are being trained for. The quality of training must be enhanced and never be compromised at any situation and the candidates should also undergo a moral test.

Police being a State subject, provided in 7th Schedule List-II of the Indian Constitution[43], is controlled by the State Legislative. The Politicians have the Superintendence over the Police and it is well known that the former often have the ability to misuse their power by using the latter for fulfilling their personal agenda.

This Police Act, 1861[44] does not provide for the protection of Police officers from external influences and pressure, and they are bound to fulfil the orders of the executive. The police are subjected to pressure from the Higher Officials and superintendence of Politicians to find the accused in a short span of time. In the case of Prakash Kadam V. Ramprasad Viswanath Gupta[45], the Police Officers were engaged by few people for killing their opponent.

While it is extremely important to be able to find the culprits soon so that the victims of a crime can achieve justice, it is a well-known fact that in India, there is a lack of efficiency in investigation. The evidence that the police are able to obtain through the investigation does not suffice, most times, to find the accused. A quality investigation is one that stands by both ethical and legal obligations.

This is to be ensured in our country through the remedies mentioned in the later chapter. With the advancement in technology being used by the culprits has made it even more difficult for the police to investigate and track down the culprits. Especially in the field of cyber-crimes, technology that provides for anonymous status to culprits, makes it nearly impossible for the police to investigate.


Considering the amount of vacancies in State police forces and the armed central police forces, there needs to be encouragement among the youth to join these forces. There should be immediate employment of Police Officers along with focus imparted to their efficient training. The United Nations prescribes for 222 Police officers for per Lakh population, but in India we have strength of 151 Police Officials per lakh Population and the Police works with just 77% of their total prescribed Strength[46]. This excessive burden, pressure and duties imposed on the police officers make it very difficult for them to perform their role successfully. It is important to ensure that they have a controlled working environment. It has been reported that the timing of their duty must be regulated appropriately. On an average, a policeman works for 14 hours a day, due to the weak strength in the department. The remuneration provided to them must be sufficient and they shouldn't be underpaid. The Indian Government, in its 2020-21 Union Budget[47], has proposed an expenditure of Rs.30,42,230 crore and out of which only 784.53 Crore will be spent on Modernising Police, which is lesser than the previous year’s budget which was 939.79 Crore[48].

Police brutality and custodial death is an instigating issue which is increasing at an alarming rate and its negative impact is faced by the citizens of the country. It has been prevalent since 1919; The Jallianwala Bagh Massacre sparked a sense of power that the authorities could impose over the citizens. This very culmination of brutality can be taken care of using strict monitoring methods. A team of experts under the Ministry of Statistics and Programme Implementation has brought into notice that there “is significant under-reporting of crimes under the National Crime Records Bureau for various reasons. There could be suppression of data and low registration of crimes because the police know that their work is judged on the basis of this information”[49].

Therefore, strict monitoring of their work becomes essential for their reform and it should be in such a way that it must not interfere with or encroach upon the duties of the police force.

Another alarming issue is when the police take the law in their own hands and do the job of the judiciary in providing justice to the victims. This mainly takes place through encounters which is very disturbing because it defies the principles of natural justice by denying fair trial to the accused. The citizens may not realise this in this perspective of law in this aspect but the police must be discouraged from taking the law into their own hands. Police officers committing fake encounters should be provided with a death sentence considering it as the rarest of rare case. The only way we can facilitate this is by limiting the immunity that is granted to public servants in the country. The main reason for abuse of power is granting excess power. This is because excessive power conferred to an authority gives rise to loopholes and defiance of law. Accountability of the police should be ensured by making them liable for their acts that constitute the act of harm to an individual. The training of the police should be in such a way that they are encouraged to serve and protect the citizens rather than oppressing them. A redressal committee PCA (Police Complaint Authority) should be established in every District to take unbiased actions on those policemen who abuse their power, infringe the right of an individual or omit to commit to their duty.

They need to be able to investigate efficiently and providing them with more instruments and following new techniques to extract information from the accused would help do the same. Methods such as brain mapping, lie-detectors and polygraph, with free consent of the accused could be used in such a way that it does not adversely affect the accused . They could also be collecting evidence using scientific methods from the Forensic Department such as Ballistic, Computer division, forensic psychology and serology division etc. as stated earlier, it is extremely important for the police to be rightly trained. They should be provided with Human Rights courses during their Training Period.

Therefore the country must focus on training the police officers and bringing up efficient and up to date investigation methods for them to follow. They must essentially be educated and made aware of their rights, responsibilities and duties. They should also be discouraged from abusing their power and encouraged to act prudently and serve the country honestly.


The duty of the State is not only to safeguard the Rights of the Citizen, but also to compensate the victims and punish the violators of law. In today’s scenario the general public is against the slow judicial response to grant justice. The best example is Nirbhaya case where justice was provided in the year 2020, 8 years after the commitment of brutal Rape. Furious about the speed at which the sentence was executed , people support the Encounters made by Police Officials and hero worship them.. Certain The provisions such as Mercy petitions found in the Art. 72 & Article 161 of Indian Constitution actually delay the Justice to be provided. These are certain loopholes by which such accused are not punished immediately or let free and force the Police officials to take severe actions. So in order to avoid such tortures and Custodial deaths and fake Encounters, the punishments should be executed as soon as after conviction. Encounters seem to be Speedy Justice, but it's just a slow demolition of Democracy. India, being a Signatory of United Nations Convention against Torture (UNCAT) but has not yet ratified it.[50] The reason being, India has not passed the Prevention of Torture Bill since 2010 and it has been reintroduced in Parliament in the year 2017. This Bill talks about Punishment for Torture, which will not be less than 3 years and may extend up to 10 years with fine. Thus stricter laws and punishments should be imposed on the saviours of law for misuse of their power and not fulfilling their duties.

Trigger-happy Policemen who think they can kill people in the name of ‘encounter’ and get away with it should know that the gallows await them

- Justice Markandey Katju.

[1] The Custodial Death of Jayaraj and Fenix, by Nikhil Sharma, June 29, 2020, [2] Constitution of India, 1950. [3] ibid [4] NHRC Monthly Human Rights Cases Statistics from January to December 2019, [5] NHRC Monthly Human Rights Cases Statics in July 2020, [6] The Custodial Death of Jayaraj and Fenix, by Nikhil Sharma, June 29,2020, [7]Chapter-9. INTERVENTIONS OF NHRC/SHRCs AGAINST TORTURE, INDIA: ANNUAL REPORT ON TORTURE 2019, National Campaign Against Torture, 26 June 2020, see [8] Ibid [9] Constitution of India, 1950, Article 14 [10] Constitution of India, 1950, Article 20 [11] AIR 1978 SC 1025 [12] M Chandrakumār and Pavithra Srinivasan, Lock-up : Jottings of an Ordinary Man (Tranquebar Press, An Imprint Of Westland Ltd 2017). [13] Constitution of India, 1950, Article 21 [14] Constitution of India, 1950, Article 22 [15] Ibid [16] Constitution of India, 1950, Article 22 (1) [17] Constitution of India, 1950, Article 22 (2) [18] Constitution of India, 1950, Article 22(5) [19] The Code Of Criminal Procedure, 1973 [20] The Code Of Criminal Procedure, 1973, Section 49. [21] The Code Of Criminal Procedure, 1973, Section 54. [22] The Code Of Criminal Procedure, 1973, Sec 46 (3) [23] AIR 1955 All 379 [24] Ibid [25] The Police Act, 1861, Section 331 [26] The Indian Penal Code, 1860 [27] The Code Of Criminal Procedure, 1973, Section 197 [28] The Code Of Criminal Procedure, 1973, Section 132 [29] The Code Of Criminal Procedure, 1973 [30] 1992 Cr LJ 2216 [31] Ibid [32] (1983) 4 SCC 141 [33] AIR 1989 A.P 235 [34] The Code Of Criminal Procedure, 1973, Section 55A [35] (1993) 2 SCC 746. [36] International Covenant on civil and political Rights, 1996, Article 9 [37] (2014) 10 SCC 635 [38] (2006) 8 (SCC) 1 [39] AIR 1997 SC 610 [40] (2010) 7 SCC 263 [41] The Police Act 1861. [42] Ibid [43] Constitution of India, 1950. [44] The Police Act 1861. [45] (2011) 6 SCC 189. [46] STATUS OF POLICING IN INDIA REPORT 2019, 1.1: What is the personnel strength of the police?, see [47] Union Budget 2020-21 Analysis, [48] The Budget has taken another brick out of the walls protecting Indians from anarchy,,crore%20spent%20in%202019%2D2020.&text=capital%20expenditure%20on%20police%20training,forensic%20science%20Rs%2015.41%20crore. [49] Report of the Committee on Crime Statistics, Ministry of Statistics and Programme Implementation, 2012; National Crime Records Bureau; PRS. [50] India behind 161 Nations in Ratifying Treaty on Torture” The Economic Times <> accessed October 3, 2020.

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