The LexGaze Weekly - DECIPHER

Statutes dealing with Rights of the accused/suspect against Police brutality

Vishakha Sharma

Issue 3 | July 4, 2020

The laws of almost all countries in the globe give police the power to use reasonable force in certain situations; however, time and again this “reasonable force” turns into brutality and barbarism, thus raising concerns about human rights. The recent incident of June 19, 2020 wherein the Tamil Nadu Police arrested P Jayaraj and his son J. Fennix Immanuel for allegedly violating lockdown rules, and subjected them to third degree torture and sexual assault (as per the media reports) is one such paradigm, resulting into the death of both of them. Those who have a nexus with the legal field are very much familiar with the case of Nilabati Behra v. State of Orissa, (1993)2 SCC 746, wherein the Apex Court treated the letter of the mother of the deceased as PIL under Art. 32 of the Constitution and awarded compensation of Rs. 1,50,000 for her son’s custodial death. However, custodial deaths or police brutality cases have 2 aspects of justice to look upon: one is to punish the policeman and the second is to give relief to the victim’s family. There are very rare cases wherein both aspects are fulfilled. In the landmark case of Dalip Singh v. State of Haryana, AIR 1993 SC 1960, the Supreme Court held the two Constables and the Sub Inspector of Kurukshetra district, guilty under S. 304(II) of the IPC, 1860 for causing death of a person by beating.

Following are the statutes dealing with rights of the accused/suspect against the police personnel under various statutes:

1. Under international law: UDHR (Art.1,5,6,8,9,100) Standard Minimum Rules for the treatment of prisoners, ICCPR (Art. 6,7,9,10), Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1987) etc.

2. The Indian Penal Code, 1860: S. 330 (Voluntarily causing hurt to extort confession, or to compel restoration of property); S.331 (Voluntarily causing grievous hurt to extort confession); S. 348 (Wrongful Confinement to extort confession); S. 166 (Public servant disobeying law, with intent to cause injury to any person; S. 166-A (Public servant disobeying direction under law); S. 304 (Culpable homicide not amounting to murder) etc.

3. The Constitution of India: Art. 20(3) –Right Against self-incrimination; Art. 21-Right to life and personal liberty; Art. 22(1) – Right to be informed of grounds of arrest; Art. 22(1)—Right to consult a legal practitioner of own choice; Art. 22 (2)—Right to be produced before Magistrate within 24 hours of arrest.

4. Bar against handcuffing: Result of the verdict in Prem Shankar Shukla v. Delhi Administration, AIR 1980 SC 1535 (handcuffing is violative of Art, 14, 19 and 21).

5. The Code of Criminal Procedure, 1973: S. 46(2) specifically lays down that during arrest by the police officer, if a person forcibly resists the endeavour to arrest him, such police officer may use all means “necessary” to effect the arrest. The police mostly does not use necessary force and exceeds it. Other provisions are S.41D(Right to meet an Advocate of one’s own choice); S.50(1) (Right to know grounds of arrest); S.50(2)(Right to know information regarding release on bail; S. 54(Right to be examined by medical practitioner); S.59(free legal aid); S.56,57,304 etc. Further, S. 176 has been amended by Amendment Act, 2005 to provide that in case of death or disappearance of a person, or rape of a woman while in custody of police, there shall be mandatory judicial inquiry. Moreover, sections 162, 163(1), 315 and 342(a) also prohibit forced confession or testimony and treat them as inadmissible.

6. The Indian Evidence Act, 1872: S. 24, 26 and 27 prohibit forced testimony or confession as inadmissible in Court and protects such accused.

7. S. 29 of the Police Act, 1861 lays down that torture in police custody is a punishable offence.

8. Various police Acts at state level and disciplinary actions.

It is concluded that the above provisions are ineffective for curbing torture by police as they are merely punitive or curative and not preventive. The need of the hour is to amend S. 132 and 197 of Cr.P.C 1973 with regards to the requirement of sanction of Government before proceeding against the police officer in custodial death cases. Further, the Indian Evidence Act could also be amended (Chapter VII) likewise to presume the guilt against the police and Burden of proof should lie on them to prove that they did not commit any offence.

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