Custodial Crimes

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Law Commission Report

Custodial Crimes

LAW COMMISSION OF INDIA

ONE HUNDRED AND FIFTY SECOND

REPORT

CUSTODIAL CRIMES

I 994

CHAIRMAN
LAW COMMISSION
GOVERNMENT OF INDIA
SHASTRI BHAWAN
NEW DELHI-I10 001
Tel. Oﬂ'. 384475
Res. 3019465

K. N. SINGH
(FORMER cHIIa= JUSTICE or INDIA)

D.0.No.6(3) (16)/92-LC(LS) August 26, 1994

Dear Prime Minister.

I am glad to forward herewith Law Commission's 152nd Report on "Cast
odial Crimes" (9th Report of the 13th Law Commission).

Complaints of abuse of power and torture of suspects in custody by the police
and other law enforcing agencies have been the concern of the society. Custodial
crimes and torture of persons in police custody are heinous and revolting as they
reflect betrayal of custodial trust by a public authority against the defenceless
citizen, such practices violate fundamental rights and human rights. There is a
pressing need to control this malady. The victims of custodial crimes, torture.
injury or death, mostly belong to the weaker section of our society, the Law Co-
mission considered it necessary to take up this matter sou mom for an in-depth.
study.

The commission circulated a working paper on the subject to elicit public
opinion. It also organised a Seminar wherein the problem of custodial crimes was
discussed at length. The Commission has, after an indepth analysis of the Con-
stitutional and legal provisions, prepared this report which contains recommend-
ations for amendment of substantive and procedural laws, including amendment
of some of the provisions of Indian Penal Code, 1860, Criminal Procedure Code,
1973 and Indian Evidence Act, 1872. The recommendations have been made with
a view to contain the possibility of abuse of power and to provide for payment
of compensation to the victims.

We hope the recommendations made by the Commission in this Report will
be implemented as that will greatly beneﬁt the poor and ignorant victims of cust-
odial crimes and it will further be a progressive step towards the protection of
human rights of our citizens.

With regards,
Yours sincerely.
(K. N. SINGH)
Hen'ble Shrl P. V. Narstmha Rae,
Prime Minister &
Minister for Law, Justice & Company Affairs,
New Delhi.

(i-ii)

CHAPTER 1

CHAPTER 2

CHAPTER 3

CHAPTER 4
CHAPTER 5
CHAPTER 6
CHAPTER 7
CHAPTER 8
CHAPTER 9
CHAPTER 10
CHAPTER II
CHAPTER 12
CHAPTER 13
CHAPTER 14

CONTENTS

INTRODUCTION .

CIRCUMSTANCES LEADING TO CRIME IN CUS-
TODY . . . . . . . . .

CONSTITUTIONAL
SIONS . . .

INTERNATIONAL COVENANTS

ARREST

CALLING TO THE POLICE STATION .
MEDICAL EXAMINATION

FIRST INFORMATION REPORT AND INQUIRY
INQUIRIES AND INQUESTS INTO DEATH .
SANCTION FOR PROSECUTION .

LAW OF EVIDENCE

COMPENSATION .

ORGANISATION OF THE POLICE
RECOMMENDATIONS

AND STATUTORY PROVI-

APPENDICES:

APPENDIX I

WORKING PAPER ON CUSTODIAL CRIMES

APPENDIX II COMMENTS RECEIVED ON THE WORKING

PAPER . . .

PAGE No
1

30
32
35

-5-
r---n

CHAPTER 1
INTRODUCTION

l.l There is a deep concern at the growing incidence oi' custodial erimcs occurr-
ing in different parts of our country. Complaints of abuse 0? power, and torture
of suspects in custody by the police and other law enforcing agencies having power
to detain a person for interrogation in connection with investigation of an offence
are, on rise. Of late, such complaints have assumed alarming dimensions project-
ing the incidence of torture, assault, injury, extortion, sexual exploitation and
death in custody. Compared with other crimes, custodial crimes are particularly
heinous and revolting as they reliect betrayal of custodial trust by a public servant
against the defenceless citizen. Custodial crimes violate law; human dignity and
human rights.

1.2 Despite constitutional and statutory provisions safeguarding the liberty and
the life of an individual, the growing incidence of custodial torture and death
have become a disturbing factor in the society. It is distressing to ﬁnd the gory tales
of dehumanising torture, assault and death in the custody of police almost in every
morning newspaper. The alarming rise in custodial crimes has picked the con-
science of every section of society and it has evoked public outcry against the law
enforcing agencies, especially the police and the Directorate of Revenue Intelli-
gence and Enforcement Directorate. The Supreme Court has expressed its deep
concern on the recurrence of custodial crimes on more than one occasion. While
dismissing the appeal of an Assistant Sub-Inspector of Police, who was senten-
cedtolife imprisonment by the coutrs below, fortorturinga person to death,
in the police custody in connection with the interrogation of an olfence of theft
committed in a police oﬁicer's house, the Court expressed its distress and angu-
ish in these words : "We are deeply disturbed by the diabolical recurrence of police
torture resulting in a terrible scare in the minds of common citizens that their lives
and liberty are under a new peril when the guardians of law gore human rights to
death. . . .Police lock--ups, if reports in newspapers have a streak of credence, are
becoming awsome cells. This clevelopmentis disastorous to our human right awar-
eness and humanist constitutional order?"

1.3 No reliable or authentic statistics are available regarding the custodial cri-
mes as most of the incidents of torture are not recorded. Incidents of torure and
injury in urban areas is brought to public notice by the media, while large number
of such incidents occurring in rural areas of our vast country, remain unnoticed.
In this state of affaits, it is ditﬁcult to pinpoint the exact number of incidents of
torture and death in custody. According to the Amnesty lnternationais Report
for the year 1993, 415 persons died in custody throughout India during
the period 1985 to 1993. According to the National Crime Records Bureau, 289
rapes and 274 deaths in police custody were reported from all over the country
during 1990 to 19932. A report published in a leading newspaper indicates that
265 incidents of custodial deaths occured during 1990-49933. There is no guar-
antee as to the correctness of these ﬁgures, but this is quite evident that the inci-
dents of torture and death in custody have assumed alarming proportions which
is aﬂecting the credibility of our system of criminal justice and bringing the State
to disrepute.

1.4 The problem of custodial crimes has been the subject matter of debate in the
Media and various fora in our country and even in international fora. National
as well as international agencies have indicated our system for the violation of hum-
an rights in the wake of reports of custodial torture and deaths. In September,
1992 the Central Governemnt convened a Chief Ministers' Conference to discuss
the violations of human rights, and it is reported that the question of custodial
crimes was discussed therein. The decisions taken at the Conference are not avail-
able although after the Conference, the Central Government constituted the Nat-
ional Human Rights Commission to deal with the violations of human rights.

1. Raghubir Singh V'. State 0} Harycmn (19803 3 SCC 17 : AIR 1980 SC 1087.

1. Letter No. 205,/1/'94-STAT/'NCRB dated 15-6-1994 of National Crime Records Bureau, Ministry.
of Home Aifairs. Government of India.

'. B. P. Saba "Towards Better Police---Public Repport", The Hindu May 17,1994 at p. 17.

1.5 Generally, the victums of custodial crimes, torture, injury or death belong
to weaker sections of society. The poor, the dewntrodden and the ignorant with
little, or no political or ﬁnancial power, are unable to protect their interests. The
aﬂiuent members of the society are "generally not subjected to torture as the P01-
ice is afraid of their resources as such resourceful persons immediately approach
higher authorities and courts to regain their freedom. Members of the weaker or
poorer sections of society, are arrested informally and kept in police custody for
dlaifys together without any entry of such arrests in the police records. During the
' ormal detention they are subjected to torture, which at times results in death.
In the event [of death in custody, the body of the deceased is disposed of stealthily
orthrown to a public place making out a case of suicide or accident. Records are
manipulated to shield the police personnel. The relatives or friends of the victim
are unable to seek protection of law on account of their poverty, ignorance and
illiteracy. But even if some voluntary organisations take up thier case or public
interest litigation is intiated against the erring public oﬂicers, no effective or speedy»
reniedy is available to them, as a result of which erring public oﬂioers go scot-free. Tliie
situation gives rise to a belief that the laws' protection is meant for the rich and-
not for the poor.. If the incidents of custodial crimes are not controlled or elimin-
ated, the Constitution,' the law, and the State would have no meaning to the people
which may ultimately lead to anarchy dc-stabilising the society. Justice Brande
is of U.S. Supreme Court looked upon Government "as the potent and omni-
present teacher (that) teaches the whole people by its example". If the Government
becomes a law breaker, it breeds contempt for law; it invites every man to be-
come a law unto himself". Such a situation cannot be permitted to exist in a civil-
sed society.

1.6 Maintenance of law and order is of prime importance to any Government!
Investigation of crime and apprehension of an offender is extremely necessary;
to ensure peace and order. For the implementation of laws and maintenance of
law and order, police and other law enforcing agencies are necessary, but no civili-
sed country can permit the use of torture and third (1 e methods during interro-
gation and investigation of an offence. The policean other Governmental agen-
cies, while enforcing the law, are required to respect the constitutional commit-
ment to the indiviaual's fundamental rights. The statutory laws including the Criminal
Procedure Code and the Indian Evidence Act provide procedure to safeguard the
interest' of a "suspect or an accused, but, in actual practice, those provisions are
violated. The existing law is inadequate and ineﬁbctive in dealing with the cust-
odial crimes and in many cases the erring oﬁicers go scot-free on account of the
complainants inability to prove the case against them. The Supreme Court has
adversely commented upon the inadequate statutory provisions dealing with the
custodial crimes in India and it has made several suggestions for reforms in the

existing laws. »

1.7 As observed earlier generally the victims of custodial crimes belong to the
'weaker sections of society. In the event of death of the earning member of a poor
family in custody, the family members of the deceased are left to lead a pathetic
life»in.penury. Various enquiry commissions appointed by the Government toeﬁe
quire into costodial deaths have recommended the amendment of the law, pro-
viding for relief and rehabilitation to the family members of the deceased'. The
Supreme Court and other courts have also directed the State to pay damages to
3-h,=___affected family members. The State functionaries including the Chief Mini'-
sters and 'Home Ministers' have been granting ex'-'gratia~payment to the affected
family members of the victims of custodial crimes, but the existing law-does -not
adequately provide for the grant of compensation or damages to the affected family
members, not there is provision for granting interim relief. No doubt relief for
damages may be claimed in tort through a civil suit but the legal position in this
respect is unclear and the process of civil suit is too cumbersome, making it illusory.

_'. Report of the Commission of Inquiry into the death o'F'Sri U. Narasimha in the Police Cuswdy
' at Sanjeeva Reddy Nagar Police Station, Hyderabad on 10-7-1986, 28 Government of
~ Andhra Pradesh (1986).
' ~ ' Report of the Commission of Inquiry on the death of Sri T. Murlidhaizan at V Town Pohfoe
_ _ "Station, Vijayawada. on 17-9-1986 (Government of Andhra Pradesh, 1987).
Report of the Inquiry Commission on the death of Dadugula Sankuriah in the Outpost of
Yelleswaram on 26-8-1985, (Government of Andhra Padesh, 1986). ' ~
Report of' the Commission of Inguiry into the dellh ol'.Sri Machela Aniiah While in the
V police custody at Thungathurthi on 6-9-1986,! (Government of Andhra Pradesh).

1»:

1.8 The Law Commission is entrusted with the task of examining the laws which
alfect the poor and suggesting such measures as may be necessary to harness law
and the legal process in the service of the poor, keeping under review, the system
of judicial administration to ensure that the system of judicial administration
is responsive to the demands of the society in the light of Directive Principles of
State Policy, Though the Government has made no reference to the Law Comm-
ission on the subject under study, the Commission has taken up the matter sou
mom for an in-depth study, with 3 view to providing relief to the victims of Cust-
odial Crimes, which mostly belong to weaker sections of our society. There have
been _dG,I_I1£|$ds in public to amend laws, both substantive and procedural to mini-
nIi$:thQ19C$Ul'If€nC6 of the custodial crimes and to provide for the relief to the vict-
ims»tsnsl~their:dependents, hence this study. The Commission is conscious that abuse
off-paws; by the law enforcing agencies cannot successfully be prevented altoget-
her.-as the obedience to the laws depends upon the social consciousness of the law
en£gpgi}1g,agQD€i¢S, consiousness of their commitment to the human rights and
tq.1hg i1_;diyid_ual's freedom and liberty. The law should be made stringent to elimi--.
nag-gphugces of torture in custody and even if it isnot possible to eliminate it alto-

, ,; eﬁjorts should be made at least to minimise it to maximum possible extent.

_ Cpjglnissiun has undertaken this task with theaforesaid object in view.

1.9.1}; to elicit public opinion on the subject, the Commission circulated a
Wgglsigg. paper on Custodial Crimes, setting out various aspects of the subject
unﬁe; study. In the Working Paper' the Law Commission formulated ten issues
on var-iotis. aspects of the problem of custodial crimes and invited opinion on
th_e__prpyisjpnal proposals for the amendment of substantive and procedural laws.
The working Paper was sent to all State_ Governments, Director Generals of all
State Police and para-military forces and also to the Home Ministry and Central
Bureau of Investigation, and to Supreme Court, and High Court Judges, Bar Ass--
ociations, academicians Law Professors, Human Rights agencies, Advocates and
other persons. Comments received on the Working Paper are summarised
in Appendix-II. The Commission has also organised an all India Seminar
on "Administration of Criminal Justice, its problems and perspectives" at New
Delhi, In the seminar Judges, Jurists, Advocates, Law Professors, Magistrates,
and B,G1iceAOi'1icers expressed their views on various aspects of the administration
of justice. 'Custodial crimes' was one of the topics for discussion, which
generatedalively debate. The Commission has, whileformulating this report, taken
into consideration the views expressed at the seminar.

*. See Appendix----I.

9s.M/J12sMd'1-.JaeCA--.~2

CHAPTER 2

CIRCUMSTANCES LEADING TO CRINIE IN CUSTODY

2 . 1 Arrest and its signiﬁcance.

Arrest of a person leads to custody, which provides possible opportunity for
commission of crime against the person in custody. Commission of a crime by
a public servant against the arrested or detained person while in custody amounts
to custodial crime. The custodial crime is preceded by arrest or detention. In generals
"custody" commences on a person being arrested, the arrest may be legal or illegal:
it may be formal or informal; it may be by word or action}-6 Whatever be the origin
or category of the act of arrest, it has one very important consequence; it deprives
the person arrested of his personal liberty. From that moment onwards, he is totally
under the control of the person arresting him. His movements, his freedom, his actions,
even his thinking, come under the exclusive control and mastery of another person.
His personality becomes subordinate to that of the person in whose custody he is
placed. Every arrest amounts to custody. Arrest and custody are not synonymous
terms. Custody may amount to arrest in certain circumstances but not in all circum,
stances.' Arrest is a formal mode of taking a person in custody, but a person may be
in the custody in other ways also. Ordinarily, the term "custody" in relation to
detention of a person implies restraint upon the movement of the person concerned
denying him freedom to move about according to his volition. Thus a person after
arrest, formally or informally is in custody of the authority concerned.

2 .2 Situation of mastery and abuse of autliorty.

It is this situation of mastery, domination and total control that is generative of
a possibility of abuse. If "power tends to corrupt" in the political area, it is equally
true to say that a situation of authority tends to abuse of authority. Such abuse may
take a variety of forms. It may lead to physical torture, mental cruelty, silent psychic
domination or any other form of abuse. The varieties of custodial torture and crime,
can be as inﬁnite as are the varieties of human perversity.

The situation is indeed peculiar. One person comes under the total domination
of another person. And that other person (so placed in domination) is not (in general)
subject to the concrete and immediate supervison or overview of a third person.

2. 1 Role of the Law.

, Of course, such supervision and overview can be supplied by the law. And,
indeed, it is one of the essential functions of the law to create and maitain an apparatus
that will function as the retraining a element against oppression, malpractice, abuse and
corruption, particularly in situaitions of sensitivity, Where the situation is one of
temptation, the law will act as a brake on the vice of greed. Where the situation is one
of passion, the law, by its sanctions, tries to control the surge of passion. Where the
situation is one of exploitation or oppression, the law must try to construct a barrier
to stop the on slaught of the evil mind. it is in this respect that the invisible, but
omnipresent inﬂuence of the law has a role to play. And it is for this reason that the
law should try to supply the deﬁciency that the peculiarity of the situation may give
rise to.

This is not to say that passing a good law is, in itself, enough to cure all evils.
Good legislation is only the beginning, but is a good beginning. In the context of
arrest (with which this paragraph is concerned), the legal framework should be such

1. 113th Report of Law Commission of India on Injuries in Police Custody :
I. Uttam Charzd v. Mahmud Jewa,AlR]936 Nagpur 200.
'. Chaney La! v. SIateofUtrarPra(.'es/1,AIRl954Allahabad,687.
Muthiah Chetriar v. Gcmesan, AIR 1960 Madras 91.
Paramhamsa Jadab v. State of Orissa, AIR 1964 Orissa 144.
Jodha Khoda Rabari v. State of Gujarat 1992 Cri. LR 3298.
Directorate of Enforcement v. Deepak Mahujan & Ant JT 1994 (1) SC 299, 306.
4

up-:_b

asto supply the restraining inﬂuence xvhich is needed because of the weakness of
human nature. This means (apart from other t1ings)thatthe law ofarrest should itself
be kept under constant review. In the "law of arrest", one has, ofcourse, to include
(i) the statutory provisions that give power to arrest, (ii) the kind of persons
empowerd to arrest, (iii) the safeguards provided in law in relation to arrest and
detention, and (iv) connected matters, including, in particular, the subjective and
objective factors that must exist before the paxver of arrest can be exercised. All these
need consideration and we wouid discuss than at the appropriate place.

2. 4 Omcers other than the police.

At this stage, we may like to make it clear that the power of arrest is not given only
to police otﬁcers. In our statutory framework, this power is conferred on many
other ofﬁcers as well. Whatever be the technical view, the y are also, in subastance,
persons in authority, like police officers. It is possible that in the ensuing paragraphs
of this eport, for brevity and convenience, the expression used is "police officer"
or "the polce." But (unless the context otherwise demands) the discussion would
apply mutatis mutandis to officers other than the police olﬁcers, who are entrusted
with the duty of law enforcement and who have poet of arrest and of keeping persons
in custody.

2. 5 Initiating the criminal process

If unfortunately, an incident of torture or other crime in custody occurs, it
obviously becomes necessary to invoke the criminal process. Ordinarily, the initiation
ofthe criminal process in India takes the shape of lodging information with the police
or of making a complaint to the competent Magistrate. Lodging information with the
police is the more frequently adopted course. However. where the personal leged to
have committed an offence is himself an otﬁcer concerned with the enforcement of the
law, this may not always prove to be very effective. It is this element of the situation
which, in a negative way, counts as a factor that facilitates malpractices.

2. 6 Medical Examination.

Allegations about the perpetration of violence by an ofﬁcer having custody have

' to be proved by concrete evidence. Eve witness testimony in such cases would very

rarely be available. But, in general, medical evidence would furnish a very satisfactory
material in this regard, provided it is available. To ensure that such evidence is
available, medical examination of the alleged victim of custodial violence could be
the best device. This postulates, inrer alicz, that such examination is adequately
provided for in the law, which is not the case at present. This aspect will therefore
receive attention at the appropriate place.

2.7 Inquest, investigation and inquiry.

Where custodial violence results in death of the victim, obviously the substantive
law has failed. But procedural law must 'take over' in order that the factum of death,
the cause of death, the mode of death and other relevant facts are ascertained. As far
as possible, the ascertainment of such facts must be----

(a) quickin its timing,

(b) adequate in its coverage,

The desideratum that we have mentioned last in the above enumeration is, of
course, of the highest importance. It is in regrd to this very desideratum that the
present situation is not satisfactory. No doubt, the statutory law, particularly, the
Code of Criminal Procedure, does contain a few provisions on the subject, but ex-
perience seems to indicate that there are three major defects in this regard. In the
ﬁrst place, though inquest by the Executive Magistrate is, at resent, mandatory,
cases are not knownwhere police ofﬁcers are associated with the inquiry, thus defeating
the very object of the provision for Magisterial inquiry. Secondly, without casting
any reﬂections of the police or Executive Magistrates, one must take note of the fact
that these inquests have not always inspired public conﬁdence. This is evident from
the persistent demands for the appointment of Commissions of Inquiry that are made

whenever there is custodial torture, rape or death. Finally, assuming that inquest by
an Executive Magistrate is. from the practical point of view, the best that can be
thought of, the diflculty is that such inquests do not always result in the initiation of
appropriate criminal proceedings against those who may be guilty.

2 .8 Deﬁciencies in regard to evidence : difficulty of proof.

We may now turn to certain practical problems arising in the sphere of evidence.
By its very nature, a crime that tal<es place while the victim is in custody is extremely
difficult to prove. in the first place (as elaborated above). the situation is such that
the victim is totally subservient to the alleged perpetrator of the crime. Hence the
victim would be afraid to speak out. Secondly, the situation is such that no third person
may ordinarily be present who can give oral testimony. Even where there is a
probability that custodial violence had been committed, it is difficult to link up the
episode with the custodian and to establish to the satisfaction of the court that (i)
the offence in question had been co mmittcd, and (ii) the offence was committed by the

the custodian.
2 . 9 Using force to compel statements leading to discovery.

Apart from the question posed in the preceding paragraph, there is another
point pertaining to the law of evidence, which, we believe, is of still greater practical
importance. The root of this problem lies in a highly anomalous provision contained
in the Evidence Act, namely, section 27. In the scheme of the Act, a confession made
by a person in police custody is not admissible. By way of T: proviso, section 27 lays
down that if a person in the custody of a police oﬂicer makes a statement leading to
the discovery of a fact, the same is admissible. whether or not it amounts to a con-
fession. Different grammatical problems and linguistic vagueness have been generated
by the placing and inept language of the section. Our present concern is with more
substantial matters. The fact that a statement can be rendered admissible, if it is
represented to the trial court as a "discovery statement" and presented at the trial in the
form of a confession marked as a discovery statement, a fact will known to every
police ofﬁcer, acts as a lever to the police officer to use unfair means to procure such a
statement. The police knows that thi is an easy method of circumventing the pro-
hibitions based on practical wisdom, experience, of generations, and deep thinking.
It is an unpleasant thing to say, but it must be said, that secton 27 of the
Evidence Act has been productive of great mischief, in the sense that it generates an
itch for extorting a confession which, in its turn, leads to resort to subtle, disguised
action in regard to the section. For the present, let us say that the section does need
drastic surgery. if the cause of honest law enforcement is to be promoted.

2. 10 Organisation of the police.

While on the theme of honest and efﬁcient law enforcement, we must also make a
mention of an important aspect relating to the organisation of the police. By and
large, the police in India is so organised that no strict dividing line is drawn between
the function of investigation and the function of maintenance of law and order.
The former requires patience. skill, long range efforts and expertise of a high order.
The latter envisages very quick action on the spot, facutly of immediate response,
ﬁrmness of the mind and a decisive approach. The oﬂicer engaged in investigation has
to collect facts, explore the reality, reconstruct the past and analyse the entire
gamut of materials. The officer charged with duties connected with law and order,
security and the like must, on the other hand, capture reality in a ﬂeeting moment and
exhibit an immediate and effective response. If a police officer is shunted oﬂ" from
time to time to emergency duties, he cannot be expected to adopt 'the text book line
of invesigation and may be teoted to switch over to less desirable methods. This is
very likely to result in an urge to resort to coercion. There are many other factors
arising out of the Police Organisation which cotribute to adoption of coercive
methods. We will discuss those in a little 'detail in a later chapter of this report.

CHAPTER 3
CONSTITUTIONAL AND STATUTORY PROVISIONS
3. 1 Introduction

The legal framework in India, both constitutional and statutory contain provi-
sions relating to custodial torture and other crimes in custody. The substantive law
Indian Penal Code) provides for punishment of a person causing injury, torture or
death on the body of a person in custody. The procedural law (Criiniiial Procedure
Code and Evidence Act) contains several provisions safegtitirdiiig the fundamental
rights and interest ofa person in custody. The constitutional and tl::: relevant statutory
provisions on the subject have been supplemented by the significant judicial pro-
nouncements.

3 .2 Constitutional provisioris : Article. 20

The prohibitions imposed by Article 30 of the Coiiszitutioii are directly relevant
to the criminal process. Article 20(1) proliiéits retrospctive operation of penal legis-
lation. Article 20(2) guards against double jeopardy for the same offence. Article
20(3) provides that no persons accused of any eﬁence shall be compelled to be a
witness against himself. These three clauses may appear to be dealing with three
different topics or facets. But there is 3 co *' tnon thrv::=.d running through all of them
namely, the anxiety to ensure that the various facets of the criminil justice system--
substative, procedural and evidentiary shall not be used to oppress the accused person.
To put the matter in different words, the common theme is that the administration
of the criminal justice system should not be so designed or iniplentented as to destroy
the deeper and moral values of justice itself .

Of course, article 20(3) is most directly relevant. The Constitution and the law
protect against testimonial compulsion on the premise that such compulsion may
act as a subtle form of coercion on the accused.' This is a value which has been given
the status ofa fundamental right but is also the underlying theme of several statutory
provisions--particu1arly sections 24 to 26, Evidence Act (as aspect which is often
overlooked). Article 20(3) comes into operation as soon as a formal accusation is
made, whether before the corn mencement of a prosecution or during its currency."

3.3. Article. 21

Article 21 of the Constituton provides that no persion shall be deprived of life or
personal liberty except according to procedure established by law. Because of the
expansive interpretation placed on the words "procedure established by law", this
article has been held to cover a variety of Governmental acts which have an impact
on personal iiberty. The case law on the article is so vast that none can grasp the total
coverage of this article without very deep study and no one can do full justice to it
without a lengthy discussion. But our task at present is c<':r.ﬁ:.e:l to drawing attention
to the relevance of Article 21 (as judicially interpreted) to custodial crime Though
Article 21 does not contain any express provision against torture or custodial crimes,
the expression "Life or personal liberty" occurring in the A1'ti~le has been interpreted
to include Constitutional guarantee against torture, assault or injury against a
person under arrest or under custody. Following are some illustrative deci-
SIOHS 2--

(i) Punishment which has an element of torture is uncon stitutionalﬁ'

(ii) Prison restrictions amounting to torture, pressure or inﬁiction and going
beyond what the court order authorises. are unconstitutionalﬁ

1. Logs Mustills Judgement in Smith v. Director. Serious Fnmu' r)fj7,_«-t», (1992) 3 An E.R_
, 463.

'. Dastagir v. State of Madras, AIR 1960 SC 759. 1978 SC 1025. para 30: Balkishan v .

State, AIR I981 SC 279.

'. Inderjeet v. State of Uttar Pradesh, AIR 1975 SC 1867.

'. Sheela Barse v. State of Mahararhrra. AIR 2983 SC 378; Jays'-2' Stage of Mgham_g};,«,-g_
AIR 1985 SC 23]. '

(iii) An under-trial or convicted prisoner cannot be subjected to physical or
mental restraint :

(a) which is not warranted by the punishment awarded by the court, or

(b) which is in excess of the requirement of prisoner's discipline, or
(c) which amounts to human degradationﬁ

3.4. Articie 22

Article 22(1) and 32(2) of the Constitution are also relevant for the present pur-
pose, because one of their objects is to ensure that certain checks exist in the law to
prevent abuse of the power of arrest and detention. Article 22(1)provides that no
person who is arrested shall be detained in custody without being informed as soon as
may be, of the ground for such arrest, nor shall he be, of the grounds for such
arrest, nor shall he be denied the right to consult and to be defended by a legal
practitioner of his choice.

Article 22(2) provides that every person who is arrested and detained in custody
shall be produced before the nearest Magistrate within a period of 24 hours of such
arrest, excluding the time necessary for the journey from the place of arrest to
court of the Magistrate and no such person shall be detained in custody beyond the
said period without the authority of a Magistrate.

Both the provisions referred to above, have a vital importance to the theme of
the present Report. The right to consult a lawyer is intended to enable the detained
person, z'm'er--a!ia.

(a) to secure release. it' the arrest is totally illegal.

(b) to apply for bail, if the circumstances so Warrant,

(d) to ensure that while he is in custody, no illegality is perpetrated upon him

The right to be produced before a Magistrate under article 22(2) is intended,
r'm'er--a!ia, to ensure that :

(i) there will be an independent scrutiny of the legality of the detention,

( ii) there will be an adequate and deffective opportunity for seeking release
on bail, and

(iii) there will be available an avenue where the person detained can ventilate
his grievance that he might have against the treatment meted out to him in
custody.

Realising the essential connection between the provisions of article 22(1) and
article 22(2), the courts have held that the provisions of clause (1) and (2) of article
22 are mandatory." -

3.5 The Indian Penal Code : General Scheme

As an enactment containing the general criminal law of the country, the Indian
Penal Code does not omit to take notice of the need to create criminal sanctions
against conduct that harms another persons through an act which ought to be
punishable. It needs to be emphasised that the Code takes as much notice of in-
tangible harm as of tangibie harm. The deﬁnition in section 44 of the Code which
deﬁnes the expression "injury" as covering harm to body, mind, reputation or

property.

'. Sum'! Batm v. Delhi' Adrnirzistrarion, AIR 1968 SC 1675 ; Sim Ram v. State of Uttar
Pradesh AIR 1979 SC 745 ; Sum'! Barra v. Delhi Admr'nistran'on, AIR 1988 SC 1579, para
31, 42; Jar-ed v. State of Maharashtra, AIR 1985 SC 231, para 4; Sher Sfrrgh v. State of
Punjab, AIR 1983 SC 465, para 11.

5. Gopalan v. State of Madras, 1950 SCR 83'. Hansmukh v. State of Gujarat. AIR 1981 SC 28;
Statement of Madhya Pradesh v. Shabhram, AIR 1968 SC 1910, 1917.

/ ea.» we-e;euu.._

The provisions of the Code that are relevant for the present purpose fall into
two categories-

(1') provisions applicable as protecting all categories of persons against speci-
ﬁed types of harms, such provisions being expressed in language wide
enough to cover persons in custody (though not conﬁned to them, and

(ii) provisions speciﬁcally focused upon the protection of persons in custody.

Thus, most of the provisions contained in Chapter l6 of the Penal Code (offence:
against the human body) cover persons in custody as well as others. In contrast,
section 330 of the Penal Code is speciﬁcally addressed to the causing of hurt to extort
a confession (though it covers certain other acts also).

3.6 Sections 166 and 167
Section 166 of the Penal Code reads as under :-

"l66. Whoever, being a public servant, knowingly disobeys any direction of
the law as to the way in which he is to conduct himself as such public servant
intending to or knowing it to be liekly that he will by such disobedience, cause
injury to any person, shall be punished with simple imprisonment for a term
which may extend to one year or with ﬁne or with both."

It may be reiterated that the expression "injury/" (see section 44) covers harm
illegally caused to body. mind, reputation or property.

Section 167 provides for punishment of a public servant framing an incorrect
document with intent to cause injury etc.

3.7 Section 220

Section 220 of the Code provides punishment to a person (with legal authority
to conﬁne persons etc.) who corruptly or maliciously conﬁnes any person. knowing
that in doing so he is acting contrary to law.

3.8 Sections 330, 331

Chapter 16 of the Indian Penal Code (oﬁences affecting the human body) is
the second longest Chapter of the Code. It provides punishment for almost every
kind of restraint, interference with or harm to body, ranging from the lowest degree
of physical attac-la: (assault) to the highest category of physical harm, namely, the
extinction of human life. However, for the present purpose, it is sufficient to conﬁne
the discussion to certain speciﬁc sections which are of direct relevance to custodial
crimes. Under section 330, a person who voluntarily causes hurt to extort "any
confession or any information which may lead to the detection of an aﬂence or mis-
conduct" or for compelling restoration of any property etc. becomes punishable with
imprisonment upto 7 years and with ﬁne. Illustrations (a) and (b) are of particular
relevance and read as under :----

"(a) A, a police officer tortures Z in order to induce Z to confess that he com-
mitted a crime. A is guilty of an offence under this section".

"(b) A, a police officer tortures B to induce him to point out where certain
stolen property is deposited. A is guilty of an offence under this section."

Section 331 punishes a person who causes grievous hurt to extort confession or
to compel restoration of property. The oﬁence !S punishable with imprisonment
upto 10 years and with ﬁne.

3.9 Sections 340 to 348

Sections 340 to 348 of the Indian Penal Code constitute a group of sections deal-
ing with wrongful restraint, and wrongful conﬁnement and their aggravations. Of
course, they envisage that the conﬁnement itself is illegal----an ingredient prominently
brought out by the adjective "wrongful". But we must refer to section 348 which
provides for punishment to a person who wrongfully conﬁnes any person for extort-
ing any confession etc. The section also punishes extortion committed to extract
information leading to the detection ofoﬂeme or misconduct. --

3 . 10 Section 376(2)

The next provision in the Indian Penal Code which deserves to be noted is
section 376(2) ,which deals with an aggravated form of rape committed by police
oﬁcers and other public servants--persons in charge of hospitals and women's
institutions etc.

3.11 Sections 3763 to 376!)

Custodial sexual off-eaices are specialty taken care of. by sections 3768 to 376D
of the Indian Penal Code, dealing with--

(a) intercorrse by a public servant with woman in custody.
(b) intercourse by Superintendent oi' Jail, remand home etc.,

3.12 Sections 503 and 506

Criminal intimidation is punished by section 503 read with section 506 of the
Indian Penal Code.

3.13 Code of Criminal Pl'6C€l.lui'E:, 1973 : General observations

The relevance of the Voile of Criminal Procedure, 1973 to the theme of the pre-
sent Report is two-fold. in the first place, the Code itself contains provisions in-
tended to operate as a safegiiard against custodial torture. These represent, what
may be called, the positive side. Secondly, those provisions of the Code which con-
fer various powers on law enforcement agencies need to be kept in mind, in so far
as they create possibilities of abuse of E'.'t1tilOl'lly. This may be regarded as the nega-
tive side. Besides these two categories of' provisions, we are concerned with the
question how far the provisions of the Code need to be supplemented, with reference
to custodial crimes, so that the investigation, trial, punishment and remedial mea-
sures in respect of such crimes are taken care of in an adequate manner in the scheme
of the Code.

As a matter of convenience, we shall deal with the provisions of the Code
sectionwise, at the same time keeping the above considerations in view.

3.14 Code of Criminal Procedure, 1973 : Section 41 : Arrest

The power of arrest is conferred on any police officer by section 41 of the Code
of Criminal Procedure 1973. For the present purpose, Section 4l(a) is the most
important provision, as under this provision a police officer may, without an order
from the Magistrate and without a warrant arrest any person-

"(a) who has been concerned in any cognizable oﬂence, or against whom a
reasonable complaint has been made, or credible information has been received,
or a reasonable suspicion exists, of his having been so concernce."

3.15 Section 49 : Restraints

Section 49 of the Code provides that the person arrested shall not be subjected
to more restraint than is necessary to prevent his escape. The emphasis is on the
prevention of his escape which may supply the need for restraint. However, at the
same time, the quantum of restraint is very carefully deﬁned by the word "necessary".
It is noteworthy that the entire provision begins with a categorical prohibition,
because the command of the law is that the arrested person shail not be subjected to
unnecessary restraint. Any excessive restraint would deﬁnitely give rise to a cause
of action o for damages, because, in such a case the immunity from civil action con-
ferred by the doctriiie of lawful authority would not be applicable. Presumably,

appropriate criminal sections would also be available, with reference to sections 340 _

to 348 of the Indian Penal Code. as also sections 349 to 358 of the same Code which
are concerned with assault and the use of criminal force. If lawful authority is
exceeded, the protection otherwise available under sections 76 to 79 of the Penal
Code cannot be claimed with the result that penal action will be maintainable against
the erring public servant.

3.16 Section 50 : Grounds of arrest
The section reads as under :---
"SO. Person arrested to be i:zfarm3tt7 of j}r3:m:z'r of arrest am' of rig}?! to bar'?

(1) Every police ofﬁcer or other pars"-$1 rt:-rest_?ng any person without warrant
shall forthwith communicate to him E'-.ll p2rt::ulars of the offence for which
he is arrested or other grounds for such 1:';-est.

(2) Where a police oiﬁccr arrests wiﬁout xvatrant any person other than a
person accused of a non-bailable o:"i'-2 ace, he shall inform the person arrested
that he is entitled to be rele1se;i on la:-.21 and that he may arrange for sureties

on his behalf."

Section 50 has been regarded as mandatory, particularly in the light of article
22(1) of the Constitution, so that non-cornpiiance with the section renders the arrest
and detention illegal}

3.17 Section 53 : Medical Examination of the accused

In certain circumstances, medical examination of the accused may become
necessary and this is taken care of by section 53 of the Code. As the law stands at
present, it is lawful for a registered medic:-.3 practitioner at the rquest of a police
oﬁicer not below the rank of sub-inspector. to rne.i~e a medical examination of the
accused, if there are reasonable grounds f:r belie'-ring thatthe examination of the
person will afford evidence as to the C0IIZ'="':7SSiOn of an offence. Such force as is
reasonably necessary for this purpose can 1-c used. In the case of women, section
53(2) provides that the examination "shall be made orly by, or under the supervision
of, a female registered medical practitioner", a provision obviously intended to
guard against sexual malpractices at the time of such examination.

It appears that in the recent Bill to amend the Code, Bill No. 35 of i994 of the
Rajya Sabha (9th May, 1994), it is sought to he cl;-.riﬁed that "examination" shall
include the examination of' blood, swabs in :15: of sexual assault, sputum and sweat,
hair sample and ﬁnger nail clippings and sub': ~:uther tests which the registered medical
practitioner thinks necessary in :1 pE'_TliCl.il-""' Case. Tl:i= Explanation seems to have
been considered desirable in View of the f':t that the subject of pathological tests
has been the point at issue before certain Higit Courts (although the Notes on Clauses

'' to the Bill do not mention this aspect).

3.18 Section 54 : Medical examination at the request of the arrested person

Section 54 of the Code gives to an arrested person the right to get his body
examined if the allegation is that such exarrsination will afford evidence which will
disprove the commission by him of any ofiznce against anybody. In this context,
it has been held that it is the duty or" the Magistrate to inform the arrested person
that he has such a right of medical examination if he has a complaint of torture,

. maltreatment etc?

It may be mentioned" that in the recent Biil to amend the Code (Rajya Sabha
Bill No. 35, 9th May, 1994), the following subsection is proposed to be added to
section 54 1-

"(2) Where an examination is made ur Tier sub-section (1), a copy of the report
of such examination shall, on a request: being made by the arrested person or
by any person nominated by him in this behalf, be furnished by the registered
medical practitioner to the arrested person or the person so nominated."

The proposal seems to have been suggested by the fact that in Uttar Pradesh by
the UP. Act No. I of 1984, section 54 has ?::en amended by inserting the following
sentence at the end :--

"The registered medical practitioner shall forthwith furnish to the arrested
person a copy of the report of such examination free of cost".

1. Ashok v. The State. 1987 Cri. LJ I750.
'. Sheeia Barse v. State of Maharashtra, AIR 1983 SC 378 : 1983 Cri. LJ 642.
5-M/Jl28MofLJ&:CA ---3

3.19 Sections 56, 5'1 and 58 :Action after arrest

Section 56 of the Code provides that a police ofticer making an arrest without
warrant shall, without unnecessary delay and subject to provisions as to bail, send
the person arrested before a Magistrate having jurisdiction in the case or before the
oﬂicer in charge of a police station. By section 57, no police officer shall detain in
custody a person arrested without warrant for a longer period than under all the
circumstances of the case is reasonable and such period shall not, in the absence of
a special order of a Magistrate under section 167, exceed 24 hours exclusive of the
time necessary for the journey from the place of arrest to the court of the Magistrate.
Provisions of section 57 are mandatory}

Section 58 provides that officers in charge of police stations shall report to the
District Magistrate (or, if he so directs, to the Sub-Divisional Magistrate) the cases
of all persons arrested without warrant, within the limits of their respective stations,
whether such persons have been admitted to bail or otherwise.

The object of these sections, is to ensure that prolonged detention is not resorted
to by the Police and that the person detained has an opportunity of making known
to the Magistrate any problems that he might have faced after arrest.

3. 20 Sections 75 and 76 : Arrest under warrant

Where the arrest of a person under the Code of Criminal Procedure, 1973 is
under a warrant, sections 70 to 81 of the Code become applicable, of which sections
75 and 76 are relevant for the present purpose. They read as under :-

"75. Notiﬁcation of substance of warront.--The police olﬁcer or other person
executing a warrant of arrest shall notify the substance thereof to the person to
be arrested, and, if so required, shall show him the warrant.

76. Person arrested to be brought before Court without de!ay.~--The police
officer or other person executing a warrant of arrest shall (subject to the provi-
sions of section 71 as to surety) without unnecessary delay, bring the person
arrested before the Court before which he is required by law to produce such
person :

Provided that such delay shall not, in any case, exceed 24 hours exclusive of

the time necessary for the journey from the place of arrest to the Magistrate's,
Court."

3.21 Section 154 : Information in cpgnizable cases

In order that the criminal process may be invoked in respect of any oﬂence,
two principal modes of approach are available under the Code of Criminal Procedure,
1973. A person may report the matter to police if the offence is a cognizable one.
In the alternative, he may make a cornpiaint before the Magistrate, whether or not
the oﬁ'ence is a cognizable one. Section 154 of the Code deals with information
given to the police in a cognizable case. The relevance of this section to the pre-
sent Report is a general one, the section being applicable to all cognizable offences
would include offences concerned with wrongful arrest or torture etc. by the police.
The scheme of section l54 may be analysed, for convenience, as under :--

(a) The information given to an olﬁcer in charge of a police station shall be
reduced in writing;

(b) It shall be signed by the person giving it and its substance shall be entered
in the prescribed book;

(d) If there is a refusal by the police to record the information, the person
aggrieved may send the substance of the information by post to the
Superintendent of Police concerned. If the latter is satisﬁed that the
information discloses the commission of a cognizable offence, he must

either investigate the offence himself or direct a subordinate oﬁficer to
do so.

'. Kha;I:v. State of Bihar. AIR 1981 SC 928: 1981 Cri. LJ 470.

It has been held that before the police starts investigation, there must be a rea-
sonable suspicion of the commission of cognizable offence.'

3.2 Section 160 : Attendance of witnesses

An important provision in the area of police powers is contained in section 150(1)
of the Code, reading as under :~--

"l60. Police oﬁicefs power to require attendance of wimesses.----(l) Any police
olﬁcer making an investigation under this Chapter may, by order in writing,
require the attendance before himself of any person being within the limits of
his own or any adjoining station who, from the information given or otherwise,
appears to be acquainted with the facts and circumstances of the case; and such
person shall attend as required ;

Provided that no male person under the age of ﬁfteen years or woman shall be
required to attend at any place other than the place in which such male person
or woman resides."

This section is of particular importance, in view of the express prohibition,
contained in the proviso, against summoning of women of any age and males under
ﬁfteen years at a place other than their place of residence. The legislative seems
to have taken note of the possibility of abuse of authority if the section is not com-
plied with.

3.23 Section 163 : Prohibition of Inducements

Taking note of the fact that a person in custody may be subjected to subtle
inﬂuences to make a confession, section 163(1) of the Code expressly provides that
no police officer or other person in authority shall offer or make, or cause to be offe-
red or made, any such inducement, threat or promise, as is mentioned in section 24
of the Indian Evidence Act, 1872. For convenience, we quote section 24 of the
Evidence Act below :--

"24. Confession caused by inducement, threat or promise, when irrelevant in
criminal proceeding~A confession made by an accused person is irrelevant in
a criminal proceeding, if the making of the confession appears to the Court to
have been caused by any inducement, threat or promise, having reference to
the charge against the accused person, proceeding from a person in authority
and suﬂicient, in the opinion of the Court, to give the accused person grounds,
which would appear to him reasonable, for supposing that by making it he
would gain any advantage or avoid any evil of a temporal nature in reference
to the proceedings against him."

3.24 Section 164 : Confession before Magistrate

The Code, in section 164, contains provisions of great importance to the criminal
process and vital for the preservation of integrity in the process. The full signiﬁ-
cance of this section cannot be appreciated unless, one keeps in mind certain impor-
tant provisions of the Indian Evidence Act and of the Code of Criminal Procedure.
In the Indian Evidence Act, by section 25, a confession made to a police oﬂicer
cannot be proved as against the person who has made the confession. Under sec-
tion 26, a confession made by a person while he is in the custody of a police oﬂicer
cannot be proved as against such person, unless it is made in the immediate presence
of a Magistrate. By section 26, of the Evidence Act a confession made to a Police
Oﬂicer becomes irrelevent besides this the legislature has enacted in section 164 of
the code, a procedure whereunder the competent Magistrate may record a confes-
sion made to him in the course of an investigation or at any stage afterwards before
the commencement of the inquiry or trial. In practice, when it is the case of the
police that an accused person in custody wishes to confess, the accused person is
taken before the competent Magistrate who, after complying with the elaborate
formalities prescirbed in section 164, records the confession. Those formalities are
intended primarily to ensure (i) satisfaction of the Magistrate that the confession is
voluntary, and (ii) proper record of the statutory warnings which are intended to
achieve the above object.

1. Rita Wilson v. State of Himachal Pradesi: 1992 Cri. LJ 2400 (HP); Nina Nargi: Devaed
V. Farida G. Devecha, 1991 Cri. LJ 2694 (Karn.). '

There is another aspect relevant for the present purpose. While under section
161 of the code, the investigating policy .,.{icer =.::in examine orally any person sup'
posed to be acquainted with the facts of 11.3 use and reduce into writing the statement
made by such person, section 162 of the 'code provides that the statement shall not

be signed by the with-.=:~:s and 1"u::hi:i', i.;..;.t the .»t;:tci.*..ent shall not be used for any
purpose (save as provided in law} .1££l1'i;y'l.;(jl.llI'}' or trial in respect of an offence under
investigation at the time when such staencnt was made. It is at this stage that

section 164 of the Code becomes use 1. Under that section, the competent Magis-
trate may record. on oath, any state, 1;)'. :-.ia~:l=: to hi:n in the course of an investiga-
tion or at any time at"terw'ard5 before Em: -'301I1lI1C';lCCn16l'1i of the tired.

3.25 Section 313 : Examination of the accused in Court

Under section 313 of the Code, the criminal court is required to examine the
accused after the prosecution ctr»-.~. is for I10 purpose of enabling the accused
personally to explain any circu:n?»:anc::' 'pouring in the evidence against him. But
section 313(2) prohibits the €1dlI'lilil5i.fal.i1J'..t of oath to the accused.

3.26 Section 315 : Accused as witness

Section 315 of the Code makes the accused a competent witness for the defence
in which case he may give evidence on oath in C'.l>'j')I'OOf of the charges, but this can
be only on his own written request. tliur. fsztifyirig the constitutional privilege against
testimonial compulsion. Section 315(1). pi'0Vf5::» (bl further provides that the failure
by the accused to give any evidence sr not be made the subject of any comment
by the parties or by the court, nor shah it give rise to any presumption against him
or against the co-accused.

3.2'! Section 35'! :Compensation

Section 357 of the Code of Criminal Procedure, 1973 empowers the criminal
court to award compensation to victiin; of an offence when the court passes a Judg-
ment.

The order may be passed not only v.-'hen the court imposes a sentence of ﬁne,----
but also when it does not impose line. The compensation can be ordered in favour
of the person who has suffered loss or iniriry cause-;L by the offence. In that part of
the section which applies where line l'Z1pOS6d, it is speciﬁcally stated that the loss
or injury must be such that in a civil suit cynpensatiou would be recoverable. Where
ﬁne is not imposed, this require; out is not expressly stated. But the word "injury"
itself suggests that it must be aiutioaiablo harm. (See section 2(h) of the Code of
Criminal Procedure, 1972 read with v::=:tion 43, Indian Penal Code). In short,
section 357 of the Code empowers the criminal court to function also as a civil court,
within the limits laid down in the section.

3.28 Indian Evidence Act : General observations
The Evidence Act deals with the following principal topics :-
(zz) the facts about which evidence can be given;
{(7) the kind of evidence that can be given about such facts;
(c) the buden of proof and the presuinptions that can be drawn;

(d) the mode of examination of witnesses and the permissible limits about the
substance and form of questions to put to them; and

(e) the role of the judge in regard to all these matters.

In the present report, we are concerned in the main, with certain matters falling
under category (at) and category (dd) above. Under category (a), it will be necessary
to deal with confessions, while under category (d), it will be necessary to deal with
the privilege against self-incrirninalion.

3.29 Section 24 to 27 Evidence Act
The subject of confessions is of vital relevance to the theme of custodial crimes,

because it is often found that the urge to procure a confession tempts the law enforce-
ment oﬂicers to resort to unfair means. The provisions of the Evidence Act relating

to confessions cannot be fully appreciated unless one keeps before the mental eye
the setting in which they appear in the Act. The scheme of the Act in this regard
can be analysed as under :-

((1) A statementmade by a party to a proceeding is an 'ar.imission' (section 17)
and is admissible in evidence.

(b) An admission is the genus; confession is a species thereof, and is therefore
admissible.

(c) However, since a confession (as distinct from an ordinary admission)
may result in the imposition of punishment, the law has enacted certain
special provisions restricting their admissibility. One such restriction
relates to voluntariness. A confession is not admissible if it is not
voluntary (section 24).

(d) In certain special situations, the law even goes to the length of assuming
that the confession may not be voluntary, having re_-_3:>.rd to the pressures
of the situation; and it therefore enacts special "exclu:~;ionary" provisions,
totally shutting them cut from evidence. One such provision is contained
in section 25, which provides that no confession made to a police officer
shall be proved as against a person accused of any offence. Such a
confession can never be used as substantive evidence to convict the
accused.'

Another exclusionary provision is contaned in sestion 26, Evidence
Act, under which no confession made by any person while he is in the
custody of a police oﬂicer shall be proved against such person unless it
be made in the immediate presence of a Magistrate. Reference has
already been made to section 164 of the Code of Criminal Procedure,
1973 under which a Magistrate can record a confession.

(e) Finally, section 27 of the Evidence Act (which curiously begins with the
words "Provided that") lays down that when any fact is deposed to as
discovered in consequence of "information" received from an accused
person in the Custody of a police olﬁcer, then so much ofsuch information
as distinctly relates to the fact so discovered, is relevant whether or not
it amounts to a confession, whether this section overrides section 26 only,
oi' any other section or sections preceding it is a question. We need not
go into that question. What matters for practical purposes is that if
"information" is given and it leads to the "ciiscove:'y" of any fact, (it
should be a relevant fact, though the section does not expressly say so)
then the information can be admitted in evide:ice--

(i) even though the person is in police custody, and
(ii) notwithstanding the fact that it amounts to a confession.

In so far as section 27 overrides the exclusionary rules relating to confessions

made by a person in custody, it puts aipowerful weapon in the hands of the police.
The vast mass of case law on the section is suﬂicientto show that the weapon has
been extensively used by the police to extract confessions by use of iorce and coer-

cion.

And if one can read between the lines, the case law also projects an apprehen-

sion that there is a tendency on the part of the police to use means not totally legiti-
mate, to procure "information" that satisﬁes the formal requirements of section 27,
even though the giving off such information may not be an exercise of the voliation
of the accused. It is for this reason that we shall have to revert to this section when
we make our recommendations?

1. Paulose v. State of Kerala, 1990 Cri. LJ 100 (Ken).
'. See Para 11.6 of Chapter 11 of the Report.

CHAPTER 4

INTERNATIONAL COVENANTS
4.1 Right to life

The right to life is safeguarded by most of the international instruments relating
to human rights. The general clause for the protection of the right to life in these
instruments declares every human beings inherent entitlement to life, which right
Governments undertake to protest by law. 1*'

4.2 Positive and negative aspects

So far as the international covenants are concerned, they seem to impose both
a positive and a negative responsibility on the State. In their positive aspect, those
covenants require the State and its agencies not to violate the right to life. This is
implicit in the obligation to respect such right. In their negative aspect, the State
must take at least such reasonable steps as are necessary to ensure protection of the
right conferred by the Covenant. In regard to the International Covenant on Civil
and Political Rights, the Human Rights Committee established under the Covenant
seems to have taken the view that the obligations of the particular States under the
Covenant encompass both positive and negative dimensions!'

4 . 3 U.N. Declaration

The General Assembly of the United Nations adopted the Declaration for pro-
tection of persons from being subjected to torture and other crime of inhuman or
degrading treatment or punishment on December 9, 1975. Article 5 of the Declara-
tion requires comprehensive training of law enforcement oﬂicers against torture.
Article 7 contemplates a system of review of the interrogation, methods and practices
as well as custodial arrangements. Article 9 obligates the States to ensure that the
acts of torture are made offences under national criminal law. The Declaration also
provides that victims shall be afforded redress and compensation.

4.4 Code of Conduct

In December 1979, a Code of Conduct for Law Enforcement Oﬂicials was adopted
by the United Nations General Assembly. Article 5 of the Code prohibits law
enforcement officials from inflicting, instigating or tolerating any act of torture. The
United Nations Voluntary Fund for Victims of Torture, 1981 was set up pursuant
to General Assembly Resolution 36/151 of 16 December, 1981 to receive voluntary
contributions for distribution, through established channels of assistance, as humanl-
tarian, legal and ﬁnancial aid to persons who may have been tortured and to member
of their families.

1. Article 6 ; of International Co.i'.'er.ant on Civil and Political Rights (United Nations.
1966). Text in [an Brownlie (ed.), Basic Documents on Human Rights (OUP, 1985), page
128.

'. Article 2(1) of the European Convention on Human Rights and Fundamental Freedom
(Council 0:" Europe, l950).Text in [an Brownlie (ed.), Basic Documents on Human Rights
(OUP, 1985). page242.

. Article 4 (1) of the American Convention on Human Rights (Organisation of American States
1969). Text in Ian Brownlie (ed.), Basic Documents on Human Rights (OUP, 1985), page
391.

'. Article 4 of the African Charter on Human and Peoples' Rights (Organisation of African
Unity, 1981). Text in K. Ginther and W. Benedek (eds.), New Perspectives and Conceptions
of International Law 2 An Afro-European Dialogue (Springer-Ver-lag, Vienna), page 247.

°'. See DadielMm2guyaMbengo v.Zaire,CommunicationNo.16/l977,in Reportsof thel-Iuman
Rights Committee to the General Assembly, U. N. Doc. A/38/40 (1983), p. 134. Pedro
Pablo Connargogv. Colombia, communication No. R. 1 1/45, in Reports ofthe Human Rights
Committee to the General Assembly, U. N. Doc. A/37/40 (1982), p. 137. Also see Olive
Farrell v. United Kingdom, Application No. 9013/80, in Vol. 25 Yr. Bk. of the European
Convention on Human Rights. p. 124.

4.5 U.N. Convention against Torture and other Cruel, Inhuman or Degrading Treat-
ment or Punishment, 1984

The U.N. Convention against torture and other cruel, inhuman or degrading
treatment or punishment 0?" i984, came into force on 26th June, 1987. The Con-
vention comprises 33 articles divided into three parts. Part I of the Convention
deﬁnes torture, prohibits acts of torture and allied concepts and obliges State parties
to the Convention to ensure that all acts of torture are punished. Part 11 provides
for the machinery for the e;.=.'orcem-ent oi' the above prohibition. Part III relates to
formal matters.

4 . 6 Torture deﬁned

The Convention against torture (1984) deﬁnes the term 'torture' as any act by
which severe pain or suffering, whether physical or mental, is intentionally inflicted
on a person for such purposes as obtaining from his or a third person information
or a confession punishing him for an act (which) he or a third person has committed
or is suspected of having Committed or intimidating or coercing him or a third person,
or for any act based on discrixnination of any kind, when such pain or suﬁering is
inflicted by, or at the instigation or with consent or acquiescence of, a public official
or other person, acting in an oflicial capacity but does not include pain or suffering
arising only from action inherent in or incidental to lawful sanctic-nsn (Article I).

4. 7 Measures

Article 2 of the U.N. Convention against Torture (1984) obligates the State
parties to the Convention to take effective legislative, administrative, judicial or
other measures to prevent acts of torture in any territory under its jurisdiction. No
exceptional circumstances whatsoever, whether a state of war or a threat of war.
international political instability or any other public emergency, may be invoked
as a justiﬁcation of torture. An order frz;-'n a superior oﬁicer or a public authority
may not be invoked as a justiﬁcation for torture. Article 4 reads as under :--

"Article 4. l--Each State party shall ensure that all acts of torture are offence
under its criminal law. The same shall apply to an attempt to commit torture
and to an act by any person which constitutes complicity or participation in
torture. Each State party make these offences punishable by appropriate penal-
ties which take into account their grave nature."

4 . 8 Education etc.

The Convention, in article 10, also requires each State party to ensure that educa-
tion and information regarding the prohibition against torture are fully included in
the training of law enforcement personnel, civil or military, medical personnel,
public oﬂicials and other persons who may ne involved in the custody, interrogation
or treatment of any individual subjected to any form of arrest, detention or imprison-
ment.

4. 9 Review of rules

Article 11 of the U.N. Convention (1984) provides that each State Party shall
keep, under systematic review of rules, instructions methods and practices as well as
arrangements for the custody and treatment of persons subjected to any form of
arrest, detention or imprisonment in any territory under its jurisdiction. with a View
to preventing any case of torture.

4.10 Other acts of cruelty

Article 16 of the UN Convention (1984) provides that each State Party shall
undertake to prevent, in any territory under its jurisdiction, other acts of cruel,
inhuman or degrading treatment or punishment which do not amount to torture,
as deﬁned in Article 1, when such acts are the result of acquiescence of a puﬁlic oﬂicial
or other person acting in an oﬂicial capacity. In particular, the obligations con-
tained in articles 10, ll, 12 and 13 shall apply. with the substitution (for reference
to torture); of references to other forms of cruel, inhuman or degrading treatment
or punishment.

4. 11 Victims

On 29th November. '£985, the United. Nations adopted a Resolution to ensure
justice for the victims of crime and abuse of power. The General Assembly of the
United Nations adopted the Caracas Resolution 'Declaration on Basic Principles
of Justice for Victims of Crime and abuse of Power'. This Declaration deﬁnes
'victims of crime' and rerguires the mem her States to establish judicial and adminis-
trative rnechanisms to enable the victims to obtain redress, formal or informa1,in
procedures that are expedient. fair, inexpensive and accessible. The Declaration
further obligates the member States to make laws providing for restitution and pay-
ment of compensation to the victims of crime and abuse of power. Article 12 of the
Doclaratiov: of 1985 obligates the member States to provide ﬁnancial compensation
to victims of crime. Article 19 requires the States to incorporate. into the national
laws, norms prescribing the abuse of power and providing remedies to victims of
such abuse. Such rc:nez.iies should include restitution and compensation and neces-
sary material, medical. psychological and social assistance in support.

4. 12 India's obligation

India is a party to the aforesaid Declarations. Hence, it is under an obligation
to take effective steps to implement them. In the deliberations before the United
Nations, the representative of Indian made "a committment by the Government on
behalf of its citizens and a guarantee for these citizens which they could claim when-
ever their rights were threatened?"

4.13 In India, the oeople's resolve to foster respect for international law and

. treaties and obligations is reflected in Article 51 of the Constitution. In fact, Parlia-

ment has enacted laws to give effect to the international obligation as contained in
various Declarations C ml Conventions. In addition, the courts have also, by their
judicial innovation, ensured the effective implementation of thosea norms. Where the
State or its agencies failed to implement the international norms, and the State has
ratiﬁed or adopted those norms, the Supreme Court of India has intervened to issue
directions for the effective enforcement of those norms through laws. Further, the
Court has interpreted domestic law in a manner so as to give effect to the implementa-
tion of the intcrnatic-nl norms. We do not consider it necessary to refer to all the
decisions on the subject, but it would be worthwhile to refer to only some of the land-

. mark decisions.

4.14 Case law

In Francis Coralie IL/zzllin v. Administrator, U. T. of Delhi? the Supreme Court
gave due recognition to the international norms while interpreting Article 21 of the
Constitution, when it observed :

" . . . . . . . . . . . . . .any form of torture or Cruel. inhuman or degrading treatment
would be offensive to human dignity and constitute an inroad into this right to
live and it would, on this view. be prohibite by Article 21 unless it is in accorda-
nce with the procedure prescribed bylaw, but no law which authorises and no
procedure presecibed by law, which leads to such torture or cruel, inhuman or de-
grading treatment can ever stand the test of reasonableness and non-arbitrariness
it would plainly be unconstitutional and void as being violative of Articles 14
and 21. It would thus be seen that there is implicit in Article 21 the right to
protection against torture or cruel, inhman or degrading treatment which is
enunciated in Article 5 of the Universal Declaration of Human Rights and
guaranteed by Article 7 of the International Covenant on Civil and Political
Rights."

The Supreme Court, while interpreting Articles, 21, 48-A and 5l(g) of the
Constitution in Clzaran Lal Sahu v. Union of India.3 observed as under :-

"In the context of our national dimensions of human rights, right to life, liberty,
pollution--free air and water is guaranteed by the Constitution under Articles
21, 48-A and 51(g). It is the duty of the State to take effective steps to protect

'. Nigel Rodley, Treatment of Prisoners under International Law (UNESCO Paris Clarendon
Press Oxford, 1987). page 59.

3. Francis Coralle Mzziiiiz V. Administrator, Union Territory of Delhi. (1981) 1 SCC 608, 619.
'. Charan Lal Sahu v. Union of Inda, (1990) 1 SCC 613, 713.

the guaranteed constitutional rights. These rights must be integrated and illuminod
by the evolving international dimensions and standards, having regard to our
sovereignty, as highlighted by clauses 7 and 13 of the Code of Conduct on
Transnational Corporations. The evolving standards of international obligations
need to be respected. Maintaining dignity and sovereignty of our people, the
State must take effective steps to saﬂguard the constitutional rights of citizens
by enacting laws."

In Karrar Sing/*2 v. State of Punjab, the Supreme Court, while dealing with
Article 21 on human rights observed as under :

"We are undoubtedly committed to uphold human rights even as a part of
long standing heritage and as enshrned in our constitutional law. We feel that
this perspective needs to be kept in View by every law enforcing authority because
the recognition of the inherent dignity and of the equal and inalienable rights of
the citizens is the foundation of freedom, justice and peace in the world. If the
human rights are outraged, then the Court should set its face against such
violation of human rights by exercising its majestic judicial authority."

These illustrative cases are cited here simply to show the importance of keeping in
mind International Conventions while dealing with questions of national law.

95-M11 l28MofLJ&CA--4

*tCHA'r'-TER 5
ARREST

5.1 Introduction

The law of arrest which, at time, was regarded -as«.a very simple subjdct.
.has proved to be a diﬁictult and tho:-~nv one for a varietyof reasons. Political events of
the lasﬂhalf a century througltcut the world have lent'an added'emphas1s to the need
topb§"§Z1've certain principles in formulating the law 'of arrestand in administering
thela ', International covenants on the subject,,2ii'id' developmgnts in the sphere of
iiimia lrights no longer permit one to sit quict'iand"take the view the everything is
well with the law of arrest. Added to this, is the apprehension, 'often expressedfroms
various 'quarters, that, on some occasions arrests are made without reas'onable'cause,
or are being made in arnanncx' contrary to3tlif:'int'ei1dment of t'l'1e'iaw.' 'In India, (as
in other countries),_the co=1si;ituition,i. inaniate against the eorivation of a,_person's
perso'tta'l'liberty except ac'co=::1in to procedure established by law, naturally increases
the theoretical and 'p'raética1 imnor't'ahce'of a discuhsion of the subject' 'Mo1_'eo"\ier,'
the vital and essential connection of the concept and procedure of arrest with the
cherished personal liberty of the citizen must obviously make it a matter of perennial
anxiety and concern for the wise law-giver as well as for the judge.

5.2 Concept of arrest

In common paralance, one understands, by the word "arrest," the deprivation
of personal liberty and we take it that a person is arrested when his freedom of move-
ment is circumscribed at the will of the person arresting him. Origin of the word
"arrest" is interesting. The Latin verb restore meant "stand back, remain behind"
or "stop" (it is the source of English :-est in the sense "rernainder"). The compound
verb arrestare, formed in post-classiﬁcal times from the preﬁx ad and restore,
had a causative function : "cause to remain behind or stop," hence "capture, seize".
These meanings were carried over, via Old French arester into English. (Bloomsbury,
Didctionary of Word origins 1992, page 38.)

5 . 3 Legal provisions as to arrest

The power to arrest a person is conferred by statute in a variety of situations.
For the present purpose, the most relevant provision is contained in section 41(1)
of the Code of Criminal Procedure, 1973. which provides that a police ofﬁcer may
arrest a person "who has been concerned in any cognizable offence, or against whom
a reasonable complaint has been made, or credible information has been received,
or a reasonable suspicion exists of having been so concerned." The ﬁrst part of the
section is totally objective, because. if a person has been concerned in any
cognizable offence, then the police oﬁicer may arrest him. What matters in the ﬁrst
part is the fact of having been concerned in a cognizable offence. The police oﬂicer's
View of the matter is of no consequence, But, in regard to the remaining portions of
section 41(1), one ﬁnds a combination of objective facts coupled with a certain
amount of subjective evaluation. The objective element in this part of section 41(1)
is highlighted by its repeated use of adjectives, such as "reasonable" or "credible."
But it is not necessary to establish objectively that the person proposed to be arrested
has been c rned in a cognizable offence. Reasonableness of the complaint, or
credibiliq e information or reasonableness of the suspicion, would suﬂice,
although th e elements themselves could be the subject matter of debate in concrete
cases.

5 .4 Formal and informal arrest

There has been considerable amount of discussion as to when an arrest takes
place, a discussion which seems to have become necessary because of the practice
adopted by police ofﬁcers of "detaining. for inquiries" or "stopping and frisking"
and the like. In an appeal from rnalaysia} Lord Devlin stated the position thus :

1. ShabbanBz'n Hussain v. Chorrg Fz:okKanz., (l 969) 3 All E. R. 1626 (P.C.)
20

_"An' arrest occurs when a police officer states in terms that he is arresting or
when he uses force to restrain the individual concerned. It occurs also when by
words or conduct, he makes it clear that he wiil, if n?C:3s5a.ry, us 2 force to prevent
the individual from going where he may want to go. It does not occur when he
stops an individual to make inquiries."

In another case (in the House of Lords,' Lord Diploek expressed himself as
under :--

'*Ari'e'st1's. a continuing act; it starts with the arrest or taking a person -_into
custody (by "action or words restraining him from moving anywhere beyond-_t~he
*En'estor's control), and it continues untilgthe person so restrtined is either
'~ releasedfrons' custody, or' having been brought before a Magistrate, is remanded
'intocustody by the Magistrate's judicial act."

Srsikequircmems of section 41.0. P.C.

iilthwillibe noticed that section 41(l)(a) of the Code of Criminal Procedure, 1973
Gberirtes-'iri=thr*ee alternative situations (apart from the totally objective-situation of
the person to be arrested having been concerned in any co gnizable offence :--

(1') reasonable complaint has been made, of having been so concerned;

'(ii) credible information having been received, of having been so concerned; :'.--_ (iii) reasonable suspicion existing, of having been so concerned.

..I.Ir|e pra€1.ice,.mos't "arrests by police officers fall under the third category,' In this co1'mection,v-«it may be pertinent to point out that reasonable suspicion has been described as the minimum requirement. According to a Full Bench decision of the Madhya,Pradesh Hight Court} reasonable suspicion is the xniniinuin,requirement. We shall refer later to a recent Supreme Court Judgrn-;11'.3 where several aspects,of the power of arrest have been elucidated and certain guidelines laid down. It is obvious that the objective "reasonable" introduces an objective element and that musonablc suspicion must exist before a person is arrested. Since arrest is a serious irroa_.d,o,n-the liberty of a person, the law has enjoined a police oiﬁcer to exercise the p'ower._bf'._ariest only after the objectiveelernent of reasonable suspicion is made? out. However, .in - actual practice this salutory mandate of the law has not beenfollfowed, as indiscriminate arrests are being made by police on more suspicion. ' s

5. 6 Discretion regarding arrest t-In «England, by section 2(4) of the Criminal Law Act, 1967, the constable's p9wercf.anest has been laid down in these words :-- ' whe're'_a constable with reasonable cause suspects that an arrestable offence has 'been committed, he may arrest without warrant anyone whom he, with reasonable cause, suspects to be guilty of the offence."

Thequestion arose in England some time ago, as to whether, on such reasonable. suspicion being entertained by he constable, arrest is mandatory. Dealing withthis 4, stion, the House of Lords held4 that even when the police has a reasonable sus- thafa person has committed an arrestable offence, it does not follow that he must be arrested. The discretion has to be reasonably exercised and its exercise can bequestioned' in a court of law on the principles which have come to beknown as l¥'edne.cbz4rd1I principles.5 According to these principles, a person on whom discretion isconferre by statute; '

(a)"must;exercise it in good faith, for furtherance of the object of the statute;

(b) tnust not proceed upona misconstruction of the statute;

-1; 'H'algareMbTtd. v. Duke, (1984) 1 All E.R. 1054,1056(H. L.\. _. '=.*Gu1abbhana>Kammo1a1 v. State of M. P., (1932; M. P. L. J. 7, l7 (F. 3.1.

1. Joginder Siiigh, para 5.7, infra. '

4. Holgate Mohd. v. Duke, (1934) l All ER. 1054, 1059, 'loan (H. Li.

".3A3gg'cfal5dAProvinciaI Picture Houses' Ltd. v. Wednesbury Corporation, (1947) 2 Ali E.R. 0( . .) 22

(c) must take into account matters relevant for exercise of the discretion;

and

(d) must not be inﬂuenced by irrelevant matter.

5.7 Judgment of the Supreme Court :

Joginder Singh's case The subject of discretion to arrest came up before the Supreme Court of India, in Joginder Singh's case which is of great practical importance for the present purpose} In that case, the Supreme Court nrst noted that the law of arrest is one of balancing individual rights, liberties and privileges on the one hand and individual duties etc. on the other hand. One has to balance protection for the individual, against the social need that crime shall be suppressed. After elaborating on this point, and after noticing the views expressed by the National Police Commission in its Third Report (pages 31 and 32) and by the Royal Commission on Criminal Procedure, the Supreme Court of India took care to suggest certain guidelines regarding arrest by the police.

The court also referred to the following suggestion of the Royal Commission on Criminal Procedure :

"To help to reduce the use of arrest we would also propose the introduction here of a scheme that is used in Ontario enabling a police ofﬁcer to issue what is called an appearance notice. That procedure can be used to obtain attendance at the police station without resorting to arrest provided a power to arrest exists, for example to be ﬁngerprinted or to participate in an identiﬁcation parade. It could also be extended to attendance for interview at a time convenient to both to the suspect and to the police oﬂicer investigating the case . . . . . . . . ."

The Supreme court also referred to section 56(1) of the Police and Criminal Evidence Act, 1984 (U.K.) which reads as under :--

"where a person has been arrested and is being held in custody in a police station or other premises, he shall be entitled, if he so requests, to have one friend or relative or other person who is known to him or who is likely to take an interest in his welfare told, as soon as is practicable except to the extent that delay is tpfrmitted by this section, that he has been arrested and is being detained ere.

5.8 Guidelines suggested by the Supreme Court In the case of Joginder Kumar V. State of U.P. (1994) 3 J.T. (S.C.) 423, 430, which we have referred to in the preceding paragraph, the court (paragraph 24 of the judgment) took pains to point out that an arrest cannot be made, merely because it is lawful for the police otlicer to do so. The existence of the power is one thing, while the exercise of the power quite another. The police olﬁcer must be able to justify the arrest apart from his power to do so. Arrest and detention may cause incalculable harm to the reputation and self esteem of a person. The court made the following observations in this behalf :

"No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a Police'Oﬂicer in the interest of pi't)[GCil.)ﬂ oi' the constitutional rights of a citizen and perhaps in his own interest that no arrest snould be made without a reasonable satis- faction reached after some investigation as to the genuineness and bona ﬁdes of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to eﬁect arrest. Denying a person of his liberty is a serious matter. The recommendations of the Police Commission merely reflect the constitutional concomitants of the fundarnentai right to personal liberty and freedom. A person is not liable to arrest rnerciy on the suspicion of complicity in an offence. There must be some reasonable justlrication in the opinion of the oﬂicer effecting the arrest that such arrest is necessary and justined. Except in heinous oﬁ'ences, an arrest must be avoided ii" a police oﬂicer issues notice to person to attend the Station House and not to leave Station without permission would do."

1. Jaginder Kumar v. Stateaf Uttar Praderh, (1994)3J.'I.(.SC)423.

In paragraph 26 of its judgment, the Supreme Court set out the requirements as un :-

"These rights are inherent in articles 21 and 22(1) of the _Constitntion and require to be recognised and scrupulously protected. For effective enforcement of these fundamental rights, we issue the following requirements :

1. An arrested person being held in custody is entitled, if he so requests, to have one friend, relative or other person who is known to him or likely to take an interest in his welfare told, as far as is practicable that he has been arrested and where he is being detained.

2. The police oﬁicer shall inform the arrested person when he is brought to the police station of this right.

3. An entry shall be required to be made in the Diary as to who was informed of the arrest. These protections from power must be held to flow from articles 21 and 22(1) and enforced strictly."

5.9 Duty of Magistrate In the same Judgment (Joginder Kumar), in paragraph 27, the Supreme Court directed that it shall be the duty of the Magistrate before whom the arrested person is produced, to satisfy himself that the requirementsset out in the preceding paragraph have been complied with. As per paragraph 28 of the judgment, the above require- ments must be followed till legal provision's are made in this behalf and it was further clariﬁed that these requirements are in addition to the rights of arrested persons found in, various police manuals.

5.10 Reasons for arrest In Jaginder Singh's case, paragraph 29, the Supreme Court, while clarifying that these requirements are not exhaustive, directed the Directors Generals of Police of all the States in India to issue necessary instructions requiring due observance of requirements. "In addition, departmental instructions have also to be issued that a police otﬁcer making an arrest must also record in the case diary the reasons for making the arrest."

5 . 11 Judgment in Sheela Barses case At this stage, we may also make a reference to an earlier Supreme Court judg- ment in Sheela Barse's case wherein certain guidelines were laid down, both regarding arrest generally and regarding the arrest of women. The relevant guidelines are as under :

"( 1) Four or ﬁve police lock ups should be selected in the reasonably good locali- ties where only female suspects should be kept and they should be guarded by female constables.

(2) Female suspects should not be kept in a police lock up in which male suspects are detained.

(3) Integrrogation of female suspects should be carried out only in the presence of female police oﬂicers/constables.

(4) Whenever a suspect is arrested by the police and taken to the police lock up, the police will immediately give intimation of the fact to the nearest legal aid committee.

(5) Surprise visits to the police loclcups in the city should periodically be made with a view to providing arrested person an opportunity to hear their grievances and ascertain the conditions of police lock up.

(6) As soon as a person is arrested, the police must immediately obtain from him/her the name of any relative or friend who he/she would like to be informed about his/her arrest and the police should get in touch with such relative or friend and inform him about the arrest.

(7) The Magistrate before whom an arrested person is produced shall enquire from the arrested person whether he has any complaint of torture or maltreat-

ment in police custody."

'8; Sheela Bars: V. State of Maharashtra, AIR 1983 SC 378.

9. Nnndirﬁ Satpatby V. Stat: of Bihar, 1978 Cri. LJ 968.

5.12 Presence of counsel The topic of presence of counsel at the time of interrogation of an accused by the police has received attention to many countries', particularly from the constitu- tional angle. The point was touched in the well '-known case of Nandini S ' thy' where an emphasis was laid on the presence of counsel in the light of article "20(3) of the Constitution (testimonial compulsion) and article 22(1) of_ the Constitution (right to consult and to be defended by a lawyer of one's choice). The relevant observations are as under :----

"Lawyer's presence is a constitutional claim in some circumstances in our country also, and, in the context of article 20(3), is an assurance of' awareness and observance of the right to silence . . . . ..we7think that article' 20(3) and article 22(1) may, in a way, be telescoped by making it prudent for the police to permit the advocate of the accused, there -"be one, to be present at the time he is examined . . . . . .We do not lay'down that the police must~s_ecure the services of a lawyer's system, an abuse which breeds other vices. But all that we mean is that if an accused person expresses the wish to have his lauoier by his side when his examination goes on, this facility shall not be denied, without being exposed to the serious reproof that in-voluntary self-crimination-secured in

-secrecy and by coercing the will was the-'project . . . . . . . . " -

It would appear that at least three articles of the Constitution articles 20 , 21 and 22 have relevance if one were to examine the constitutional aspect in" great detail. Even if the non-constitutonal aspect is taken into account, it would seemuthat if serious effort is made to check the malpractices of torture and allied "practices" "during interrogation, there should be a provision, at least entitling the arrested, person to demand that the interrogation should be carried out in the presence of his counsel or a- family friend of his choice. Requirementtof State appointed counsel being present at that stage need not be inserted, but what we have stated in the preceding sentence, needs to be incorporated into' the law. We" should mention that in response to our questionnaire (Issue No. -2) some replies ihavefavoured the presence" of counsel though a" fairly large number have opposed it; (Issue No. 2). ' ' 5.13 Law Commisson Report No. 115 We would' like to speciﬁcally mention at 'thisﬁplace that the Law ffommlsslon of India, in its' 135th Report on Women in" Custody (1989) recommended detailed provisions to avoid harassment to women in custody and to protect them to the extent

-possible. The Commission,» for this purpose, recommended the insertion of a 'speciﬁc and-separate-Chapter in the Code of Criminal Procedure, so that the concerned oﬂicers, as well as women's organisations and women in custody and their relatives, , without much effort, discover and inform __th.emselyes of the rights of such women andthe obligations of various oﬂicers. A draft ol"the proposed Kseparte Chapter relating to arrest, interrogaion and custody of women etc. was attached to the Report. it the present stage, it may be suﬁicient to mention only those recommendations which are related to arrest and interrogation. T-heseareas under :-- . ' . 'A i » . 3 (1) In the event of a woman being required to be arrested, the police.-"oﬂicer concerned shall not actually touch the person of the woman and may presume her submission to custody. This recommendationis being made in order that the dignity of the concerned woman is 'maintained.

(2) Ordinarily, no woman shall be arrested after sunset and' before sunrise.

In exceptional cases calling for artestduring these hours,-- «

(i) prior permission of the immediatesgjperioi ofﬁcershall be ' obtained, or (ii) 'if the case is of 'extreme urgency': 'then, 'after arrest, a report with reasons shall be made to the immediate superior officer and to the Magistrate.

(3) Wherever _a,.__won_1an is medically examined, the examin'ation'shall be conducted gnbgnnder the 'supervision. of .a female medical -practitoner, with strict regard to_c_lecency. 7 25 (4) The concerned woman shall be informed about her right to be medically examined, "in order to bring on record any facts which may show that an .» ' » 'oﬂence against her hasleeeneommijtted after herarrest." , (5) A copy of the report of the medical examination shall be furnished to the woman. ' C ' '(6) A woman shall not, under section 160 of the Criminal Procedure Code, be required to attend for interrogationat any place other than hendwellxag house, and section'l60 of the Code should be amended for the purpose».

(7) When the staternent of a woman is recordedduring investigation; a .,» relative or friend of the woman or an authorised representative of an organisation interested in the welfare of women shall be allowed to remain present.

5:214 Judicial oﬂicers 7 _It would be proper to mention at this stage the Supreme Courts another judg- ment in which certain guidelines have been suggested to be followed by police officers or judicial oﬂicers.1 The guidelines are as under :-

(a) If a judicial otﬁcer is to be arrested for some offence, it should be done under intimation to the District Judge or the High Court, as the case may be. .,

(b) If facts and circumstances necessitate the immediate arrest of a judicial oﬁicer of the subordinate judiciary, a tecnical or formal arrest may be effected.

(c) The fact of such arrest should be immediately communicated to the District and Sessions Judge of the concerned District and the Chief Justice of the High Court.

(d) The judicial ofﬁcer so arrested shall notbe taken to a police station, without the prior order or directions of the District and Sessions Judge of the concerned district, if available.

(3) There should be no handculﬁng of a judicial otﬁcer. If, however, violent resistance to arrest is offered or there is imminent need to effect physical arrest in order to avert danger to life and limb, the person resisting arrest may be overpowered and handcuffed. In such case, immediate report shall be made to the Districtand Sessions Judge concerned and also to the Chief Justice of the High Court. But the burden would be on the police to establish the neoessityfor effecting physical arrest and handcuﬂi-

ng the judicial oﬂicer, and if it be established that the physical arrest and handcufﬁng of the judicial officer was unjustified, the police oﬂicers causing or responsible for such arrest and handcutﬁng would be guilty of misconduct and would also be personally liable for compensation and/ or damages as may be summarily determined by the High Court.

5.:15 -'Member of Parliament We may. also like to take note of the fact that the question of arrest of Members of Parliament (and of Members of Legislaturesof States) is of some importance. The current convention is that the police oﬂicer arresting such member on a criminal charge shall forthwith inform the presiding oﬂicer of the legislature through telegram and also by post. This practice should continue. In Joginder Sz'ngh's case," the Supreme Court emphasized the need to observe strictly the following norm :--

"Under Rule 229 of the Rules for Procedure and Conduct of Business in Lok Sabha., when a Member is arrested on a criminal charge or is detained under an executive authority or order of the Magistrate, the executive authority must inform without delay such fact to the Speaker. As soon as any arrest, detention, con-

viction or release is eﬁected, intimation should invariably be sent to the Govern-

ment . concerned concurrently with the intimation sent to the Speaker/Lok , Sahha/Rajya Sabha. This should be sent through telegrams and also by post and ' the intimation should not be delayed on the ground of holiday."

1. Delhi Judicial Service Association v. State of Gmlarat, (1991) 4 SCC 406.

9. Jaginder Sing}! v. State ofPunjab,(1994)3JT (SC)423, 430, 431.

5. 16 Course to be adopted----Amending the Law We have tried to collect together in this Chapter the important materials relating to arrest, with a view to focussing attention upon the various mesures that should be adopted, particularly in order to check malpractices. We are conscious that it may not be feasible to put everything in legislation. A possible device of dealing with the various propositions mentioned in this Chapter would be to insert a numer of sections--like, 50A, 50B 50C and so on---in the Code of Criminal Procedure, 1973 to incorporate all those propositions that can be overwhelmingly codiﬁed. It is necessary that the important propositions, having direct relevance to the prevention of torture in custody should be given legislative form. With this end in view, we would recommend that a new section or sections (as may be convenient) should be inserted after section 50 of the Code of Criminal Procedure, 1973 to incorporate the following propositions in substance 2--

(l) Whenever a person is arrested by a police oﬂicer, intimation of the arrest shall be immediately sent by the police oﬂicer (along with intimation about the place of detention) to the following persons :--

(a) a relative or friend or other person known to the arrested person, as may be nominated by the arrested person;

(b) failing (a) above, the local legal aid committee.

(2) Such intimation shall be sent by telegram or telephone} as may be con-

venient, and the fact that such intimation has been sent shall be recorded by the police officer under the signature of the arrested person.

(3) The police oﬂicer shall prepare a custody memo and body receipt of the person arrested, duly signed by him and by two witnesses of the locality where the arrest has been made, and deliver the same to a relative of the person arrested, if he is present at the time of arrest or, in his absence, send the same along with the intimation of arrest to the person mentioned in(l)(a) above.

(4) The custody memo referred to in(3) above shall contain the following particulars 2-

(i) name of the person arrested and father's or husband's name,

(ii) address of the person arrested;

(iii) date, time and place of arrest;

(iv) offence for which, the arrest has been made;

(v) property, if any, recovered from the person arrested and taken into charge at the time of the arrest; and

(vi) any bodily injury which may be apparent at the time of arrest.

(5) During the interrogation of an arrested person, his legal practitioner shall be allowed to remain present.

(6) The police ofﬁcer shall inform the person arrested, as soon as he is brought to the police station, of the contents of this section and shall make an entry in the police diary about the following facts :

(a) the person who was informed of the arrest;

(b) the fact that the person arrested has been informed of the con-

tents of this section; and

5.17 Arrest of women : Recommendations Of the various recommendations made in the 135th Report of the Law Co- mmission of India (Women in Custody) referred to above," recommendations No. 1 and 2 are of direct relevance to arrest and we recommend that the same K At present there is some obscurity in this regard. See report about beliefs of Delhi Police The Statesman, 1 3th April, 1994, page 9.

I. Para5. 13, supra.

should be incorporated into the Codes of Criminal Procedure, 1973 at an appro- priate place.

S.18 Power of arrest : Recommendations We now come to the major question as to the direction in which the power of arrest conferred on the police, in regard to oognizable offences needs to be amended in order to reduce the possibility of inist:-.:s of the power. Section 41(1) (3.) of the Code of Criminal Procedure 1973 which contains the material reads as under 2--

"4l(l) Any police officer may, without an order from the Magistrate and from the Magistrate and without a warrant, arrest any person----

(a) who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible infor-

mation has been received, or a reasonable suspicion exists, of his having been so concerned.

A misconception seems to prevail that if there is a power to arrest. then that power must be exercised. The judicial decisions to which we have referred in the relevant paragraphs of this Chapter1 take pains to point out that this is not the legal position. The power is subject to the ordinary principles of administrative law. Justiﬁcation for its exercise must be shown to exist in each case. What the law requires, is not merely the requisite quality of complaint, information or sus- picion about the commission of a cognizahle offence, but also the satisfaction of a further condition, that shows the cornplicity of the person to be arrested, in the suspected offence. All these propositions are implicit in the scheme of section 41, particularly when the section is viewed against the background of the general law, including administrative law and rules of statutory interpretation. Thus, the fact that there is a discretion and not a duty, is sufficiently indicated by the word "may". The factthatcomplicity of the particular person is to be established, is also suﬂiciently indicated by the words "against whom" and by the words "of his having been so concerned" which occur in section 41 ( l)(a).

5.19 Need for Amendment Notwithstanding clear words, and amendment is needed, because the essen- tial requirements are many times overlooked either deliberately or through over- sight. The rush of work may also prevent full and proper attention from being given to the need to satisfy all these requirements, though that cannot be an ex- cuse for non-compliance. In this situation, we are faced with a dilemma when considering the question whether an amendment to h'ghlight these essential feat- ures is needed. On the one hand, a provisicn which is vitally concerned with lib- erty should be as precise as possible and it can be argued that even)at he cost of making the provision appear cumbersome, one can with some justiﬁcation, take the liberty of putting more emphatically into the section all those requirements which are unfortunately overlooked sometimes. As against this, there is the con- sideration that a matter which is already explicit (if the section is read carefully) cannot be added and that such addition goes against the normal practice of leg- islative drafting. We have ultimately come to the conclusion that on balance it Will be preferable to recommended 'an amendment'. The situation prevailing is one where brevity must yield to clarity; principle and detail must be made to re- side together; elegance of form of will have to yield to structural complexity; and profusion of language will have to be regarded as excusable, in order to achieve objectives whose importance transcends the ordinary canons of drafting.

5.20 Amendments of Sec 41 Recommended Accordingly, we recommend that in section 41 of the Code of Criminal Pro- ﬁure Code, 1973 after sub--section (1), the following new sub-section (IA) should inserted :-

"4l _(lA) A police oﬁicer arresting a person under clause (a) of sub-sect- ion must be reasonably satisﬁed and must record such satisfaction, relating to the following matters :--

(a) the complaint information or suspicion referred to in that clause, is not only in respect of a cognizable offence having been comm-

ited, but also in respect of the complicity of the person to be arr- ested, in that offence;

1. Para 5.7, 5.8., supra.

95-M]J128MofLJ&CA--S 28

(b) arrest is necessary in order to bring the movements of the to be arrested under restraint, so as to inspire a senseofiseeuriti in the public or to prevent the person to be arrested from ing the process of the law or to prevent him from commi ting similar offences of from indulging in violent behaviour in" gen- eral." ' We should mention at this stage that about unrestricted power. of arrest. sons of the replies to our Questionnaire favour some restriction (Issue,No.f8); In fact a senior police officer expressed this View at the Seminar.

In Joginder Sz'ngh's case,1 avery helpful suggestion has been made about the possibility of substituting a notice of appearance in place of "arrest by the pol- ice. This is really in the nature of a summons; but it is new idea inasmuch as, und- er the present' law in India, while a summons to an accusedperson may be issued by the court, the police does not issue a summons to an accused person. There are several factors justifying the insertion of such a provision. The. great factor is, of course, the protection of personal liberty which, in certain cases, can' be ,, - ieyed without sacriﬁcing considerations of public welfare. Substitutio of" I ' deyiee. will automatically eliminate, or at least reduce, the possibility 0 go" to We should. therefore, recommend th'at§in the Code of"Cri1:hiI;'al' M, died:

up-,,' 1973, a new Section should be inserted till the following lines :e "4lA. Notice of appearance---Where the case falls under clause~(a) ofsub-seer» ion "(l) of section 41, the police' oﬂioerw may, insteadof arresting concerned, issued to him a notice of appearance requiring horn to appiu' before the police oﬂicer issuing the notice or at such other placeas may be speciﬁedin the notice and to co-operate with the police olﬁeer in the investif gation of the offence referred to, in clause'(a) of sub-section (1) of secti6n74!.

(2,).Where such a notice is issued to any person, it shall be the duty: of the; person to comply with the terms of that notice.

(3) Where such person complies and continues to comply wit .the. notice, he shall not be arrested in respect of the offence referred to in t e notice un-

Iess;'for reasons to be recorded, the police oﬂicer is of the opinion' that the ought to be arrested. C ' C " ' ' (4) Where such person, at any time, fails to comply with the terms of thepgtg ice, it shall be lawful for the police oﬁicer to arrest him for the Gﬁﬂlae. mgntg ioned in the notice, subject to such orders as may have been passe_d.in_ this behalf by a competent court."

5.21 Duty. of Magistrate :. Recommendation In order that the various safeguards set out in this Chapter are complied with itisdesirable thatthere ought to be a kind of' supervision of overseein'g"'of"'ti_i'e' po1ice'b'y' an independent agency. In the present set up, it may not be possible'tb_ p?ovi'd'efo_r aseparate agency in this regard', but it should be possible to utilise tI_1e"'existing" machinery for the purpose. Both under constituional' 'r' uiremejlté' as laicldown in Article 22 of the Constitution and under section 560' 'th€'Cr'|t'Ié of Criminal Procedure, 1973, the person to 'fit-Iarrested has to be produced Rite a Mtrgistrate, By virture 50f the combiitetl operation of ' 'section '56_'5a'1id° ' ofthe' Code,"production of the accused' beforea Magistrate must--tal(e1Jla?€:eiigvit_tlx',f3 24 hours '6!' 'the arrest? But in cases where' informal arrests are made; the' ace '5 ed is not produced before the Magistrate within; 24 hours, instead. h¢_:.is,. lgemtiu police custody for interrogation and hisianrest is shown only after' he is coe to-confession or to state facts leading to discovery of weapon or goods '1-'oi~ pre- Vﬁnb this 'malpractice, the Magistrate before whomthe accused ispresented. should} enquire from the accused the time and date of his arrest and record the 081' recommendation is that a new section. 57A may, be inserted in the Code of Crimi- n§1?_I:'_O(}§qi}Te on the following lines 2--

"57A. Duty of Magistrate to verify certain facts--When a person arrested Without warrent is produced before the Magistrate, the Magistrate shall, by inquiries to be made from 'the arrested person 'satisfy himself that the pro- visions of sections, 57 and 57, have been: complied' with" (sections relating to

1. Joginder Singh V. Ste; of UP.. JT (1994)3 SC 423, 430, 431:. '. Dram' V. State of Bihar, AIR 1981 SC 928 : 1981 Cri. LI 47q_' (59, .~ ..,a...., an--u».¢....

safeguards in connection with arrest, rights on ""arrest, intimation etc. to be entered) and shall also enquire and record the time and dare of arrest."

5.22 Other matters The recommendations that we have made in some of the paragraphs immedi- ately preceding this paragraph seek to take care of important matters on which a legislative prosition is urgenlty desired. For the present, we are not m'atl'tin'g're- worn ations _ regarding some matters touched upon in this Chapter, 'because e_y._may not lend themselves easily to legislative formulation. However

-lt'h'e._»need.-to codify them in the'Police Manual isvery urgent. We arer eferring here specialised topics as relate to the arrest of judicial ofﬁcers and the arrest .o£3lyIembersMo_f Parliament. The fact that in this report, we are not suggesting leg- islative amendment on these points, does not mean that they are not of vitat im- portance. If such problems recur, it may been be necessary to attend to -tl1Em':=by recommending statutory provisions.

' ds matters dealt with inthe Law Commission of India's 135th Re- n in' Custody), we have already made a recommendation in this Chapt- je1'1'_'onjpbi_hts'_d'irectly relevant to the theme of arrest in the context of the present 'Report, ".ﬁ'1';t"the remaining recommendations made in that Report also need to l5e"im_pleme'1it%d. We note that in the Bill recently introduced to amend the Code }"'994),* one or two of the points dealt with in the 135th Report have '5eenj'implem"ented. But many other recommendations of that Report have been y'L§ff*out'e5véi1*_though' they relate to provisions of the Code of Criminal Procedure, lwemliave 'not been able to locate in the -Notes on Clauses to the Bill any 1'éasbns"l'or 'this non-implementation. We are of the view that the remaining re-

should also be implemented as that would safeguard the interest '-éfwatnen;

'. Para 5.17., supra.

CHAPTER 6 CALLING TO THE POLICE STATION 6 . 1 Introduction We propose to deal in this Chapter with one situation forming part of the investigation by the police into cognizable offences, namely, calling a person (wit- ness) to the police station. This particular act by the police may appear to be just a preliminary step and insignilicant from the overall point of view of the mach- inery of criminal procedure, but, for the purpose of the subject matter of this re-

port, it is of cruical importance.

6. 2 The present law To begin with, we may refer in brief to the present law on the subject. Chapt- er 12 of the Code of Criminal Procedure, 1973 which is titled "Information to the police and their power to investigate", confers by section 156, power on an oﬂicer in charge of the police station, without the order of the Magistrate, to in- vestigate any cognizable case. The procedure for investigation begins with section 157, under which, inter alia, the investigating oﬂicer is expected ito proceed to the spot to investigate the facts and circumstances of the case and, if necessary, to take measures for the discovery and arrest of the oﬁender. Under section 158, the Magistrate himself may direct an investigation or hold a. preliminary inquiry.

-In the majority of cases, the police cﬁicer calls the witnesses to the police station under section 160 (to be examined in detail presently) and it may be noted that under section 161, the investigating officer may examine orally any person supp- osed to be acquainted with the facts and circumstances of the case.

Section 160 ofthe Code, reads as under -

"l60. Police oﬂiceris power to rcqz.'ire attendance of wimesses.----(l) Any pol- ice oﬂicer making an investigation under this Chapter may, be order in writ- ing, require the attendance before himself of any person being within the limits of his own or any adjoining station who, from the information given or otherwise, appears to be acquainted with the facts and circumstances of the case; and such person shall attend as so required;

Provided that no male person under the age of ﬁfteen years or woman shall be required to attend at any place other than the place in which such male person or woman resides.

(2) The State Government may, by rules in this behalf, provide for the payment by the police oﬂicer of the reasonable expenses of every person, attending under sub-section (l) at anyplace otnerthan his residence.

6.3 Section 160 Cr. P.C. Recommendation Section 160 of the Code of Cirminal Procedure, 1973 which we have quot- ed in the preceding paragraph is not a minor provision of routine character; in- stead it confers very wide power on a police oﬂicer investigating a case to summon any person to the police station for interrogation. The enacting section grants leg- islative sanction to the age-old convention of the police officers to bring persons to police station for purposes of interrogation. By and large, this power is mis- used by the police. Though the law requires the investigating officer to summon any person for interrogation by an order in writing. Yet, in actual practice, this is rarely followed. Generally, the investigating officer or a constable of the police station calls the witness to the police station, where he is interrogated. Mariya time, he is made to wait for hours and sometimes even for days together and if during interrogation, the witness pleads ignorance of the incident which maybe the subject matter of investigationg lie is threatened, coerced, assaulted and even tortured at the police station. Some persons have raised the question whether it is necessary to call a witness to the police station for interrogation. A witness 30 31 is not an accused, he need not visit the police station to give evidence though as a responsible citizen, it is the duty of every citizen to furnish to the police information regarding the facts and events which may be in his knowledge. That information from him may be obtained by the police ofﬁcer at the place of the witness. However, there may be special circumstances in some cases where the presence of the witness at the police station may be necessary, but, by and large, the provision requiring the witness to appear at the police station for interrogat- ion by the investigating ofiicer does not appear to be necessary or desirable. This section provides an easy handle and occasion to the police to coerce and torture the withess at the police station. We are, there fore, of the opinion that section 160 needs mldiﬁcation to the effect that ordinarily attendance of the witness at the police station shall not be neceassary; instead, he should be interrogated or exami- ned at his place of residence but, if in any particular case it is necessary to do so, reasons must be recorded and the witness must be summoned by a written order. Section 160(1) needs amendment to avoid the prevailing malpractice.

6.4 Need for Penal Sanction The principal objective of the proviso to Sec. 160(1) is to ensure that the ex- amination of young persons and of women is undertaken in an environment fami- liar to them, so that the possibility of physical abuse is eliminated, as also the poss- ibility of creation of psychological tension in their minds. In the modern era when the protection of privacy is given great importance, this provision obviously ass- umes considerable signiﬁcance. In any case, the under lying assumption that call- ing the woman etc. to the police station is an extremely undesirable eact impliet that the provision must be complied with scrupulously. Unfortunately, ar pres- ent, the law while enacting this restriction, has failed to enact a direct and spec- ﬁc provision to enforce this salutary prohibition. It is to remedy this situation that a penal provision in the nature of criminal sanction is needed.

6.5 Section 164A I.P.C. Recommended As discussed earlier, section 160 of the Criminal Procedure Code, 1973 is observed more in its breach, than in its compliance. As a result, the object of pro- tection by law to safeguard the interest of witness is defeated. The Law Commi- ssion in its 84th Report on "Rape and AIlire'¢i0ﬂi!nces : Same Question ofSubsant1've Law, Procedure and Evidence" considered this question and recommended to enacta speciﬁc provision as Section 166A in the Indian Penal Code to cover vio- lation of Section 160 of the Criminal Procedure Code. Again in tits 135th Report on "Women in Custody", the Law Commission recommended the insertion of Section 166A in the Indian Penal Code providing for punishment to a public ser- vant who knowingly disobeys any direction of the law prohibiting him from re- quiring the attendance of a person for the purposes of investigation into an offence. Unfortunately earlier recommendations have not been implemented. Con- sequently the safeguard provided to a_ witness continues to be defeated.

6.6 In the light of what we have stated in this.Chapter, we reiterate the recomm- endation made in the aforesaid earlier Reports1 of the Law Commission of India to the effect that after section 166 of the Indian Penal Code, there should be in- serted a new section 166A punishing the violation of section 160 of the Code of Criminal Procedure, 1973, Even if the view is taken that the situation is governed by section 166 of the Penal Code or by some other section of the code, we are vary strongly of the view that there is need for a speciﬁc provision as recommend- e y us.

'. Law ccmmissien of India, 84th Report on Rape and allied oﬂ'iences--some questions of substantive law, procedure and evidenw' and 135th Report on' Wom an in Custody' CHAPTER 7 MEDTCAL ExA'1vﬂN' ' 'A'I"ioN 7.1 -Beneﬁcial and adverse aspect The subject of medical examination has rerevances to the malpractices comm- itted during investigation, in the following two a'sp'e'€ts :

(a) Medical examination of an arrestedfperson may be useful as estab-

lishing the fact that certain injuries -were inflicted on his body during custody. If undertaken immediately' aﬂerl arrest, it may be useﬁulwfor estab¥shiing1hatat<,t~he'time of .anest,a thbreﬂwere no injuries on? hisvrbody. This is the "beneﬁcial aspect" Medical examination of a public ser- vant accused of custodial rape is also imp6St:Int3'fro'rn*=the'?¢v!idb7tItilry angle and can equally be described as -falling under the beneﬁcial as- pect.

(b) In contrast with the above, thefe is'-'an'ddverse aspect of medical ex- amination. At the time' of, or duringantsdieal examination, malpract- ices may occur, particularly in the ease-of victims of -sexual oﬂbnees who offer themselves for medical ~e'xa'min'ation. The law has tovguard against this possiblility also. Of course,' the malpractice --pe1"pet'raeed on an alleged victim of sexual crime does not technically fall '-within "custodial" crime. but there have bﬁenvédses of 'sexual crime on Wo- men in custody. We think- it-'etiieesiéiyilo discuss various--aspects of this topic.

7.2 Various situations categorised Sections 53 and 54 of the Gode of Criminal««Procedure provide for the inedi- oal examination of an-arrested person. Under section 53, a police oﬂicer.has,pow- er to get anarrested person medicallytexaminqdt-byta registered medical paractit- ioner if there are reasonable -grounds for believing that medical examination of

-his person will aiford evidence to the commissionaof offence. Once the-police op "- oer entertains reasonable grounds for believing:-that the examination of 'sted person will afford evidence to the commission of the crime, it would be oompulsory for the accused to undergo medical -exanination. Sectionl54,_on other hand, confers a-right on the arrestedperson ~to.~get himself medically exami- ned, if, at the time of his production before the magistrate he makes an allegat- ion that the examination of his body will afford-evidence which will disprove the commission by him of an offence or which willwstablish the commission;by--any other person of an oﬂ'ence against his body. On such a request being made, 'the '1!'1'agistrate- is tsétmd to- issuei-a? direction fdrf-the mbdical~' exainination-of theébbdy 'df7"such a? person" by a' registered medical unless' the 'siders that tl1e'réq'uestI is made'for'the?puiip6se'b1* army: or for dettéatingitherands of justice. These two general 'provisions-re _lateHtl1e{_que'"stion of medical nation, in -allikind of cases-includirig rape an cogh£te'6ﬂ'ences a'n'd'custodial=0times-. 713* Medical exammanan ortheraecnsangt:£erhnys:' Sections'53-54, Cr. P.C. Theoretically, medical-exa'mination~ ear-"-Be:-'outage:-ised under thefollowing heads :

(a) Medical examination of the accused generally.

(b) Medical examination of the accused in cases of rape and cognate oﬂ'-

ences.

(d) Medical examination of the victim in cases of rape and cognate oﬂ'- cnces.

as as medical examination under cate'gory='('e')'is concerned,' _it does-not gen- erally present any problem of malpractice; Assregards the medical examination of category (b) and (d), both relate to the oiences of rape and cogn_ate_oﬁ'enees. In such cases medical examination of the accused as well as the victim IS necess- ary, as it provides valueable evidence regarding proof of the allegations. Medi- cal examination of accused and the victim in cases of rape and cognate offences has been exhaustively considered by the Law Commission in its 84th Report} Affera detailed discussion, the Commission was of the opinion that the existing provisions' in Sections 53 and 54 of the Criminal Procedure Code were not ade- (mate-'to" afford evidence of commission of offence. The Commission recommend- ed'amend'ent of Section 53 as well as insertion of'seetion 164A of the Code of Cri- minal Procedure. We agree with those recommendations and reiterate that the same should be carried out.

Incidentally, we find that the bill to amend the Criminal Procedure Code introduced recently (9th May, l994)3 seeks amendment of Section 53 and 54 of the principal Act on the subject on the basis of the recommendations of the Report of the Law Commission. However, we ﬁnd that in the Notes on Clauses no ref- erence has been made to the Law Comrnission's Report. It would have been help- ful if this ha.d been done.

7. 4 Medical examination of the accused Section 53 of the Code of Criminal Procedure, 1973 relates to compulsory medical examination of the accused at the request of the police, while Section 54 is concerned with the right of the accused to get himself medically examined. Section 54 is a beneﬁciary provision which provides an opportunity to an arrested person to get himself medically examined to disprove the commission of any off- ence by him or to establish the commission of any offence against his body. This provision is directly connected with the custodial crimes. Under the existing pro- visions of Section 54, if a person under arrest is tortured or assaulted he may, when produced before the magistrate, make a request to the magistrate for the medical examination of his body to establish that he had been subjected to tort- ure and physical assault during the period of detention. Though this right exists. Yet, as pointed out earlier, most of the arrested persons, especially those against whom custodial crimes are committed, are ignorant of their right. Even if the arr- ested person who is produced before the magistrate is aware of this right, he does not dare to make a complaint to the magistrate or makea request for medical examination in the presence of the police. In order to minimise the chances of custodial torture or sexual exploitation, it is necessary and desirable that Sec- tion 54 should be strengthened in the interest of preventing malpractices. When the accused is produced before a magistrate, it should be mandatory for the mag- istrate to enquire from the arrested person whether he has any complaint of tort- ure and maltreatment or sexual exploitation in custody and the Magistrate should further intimate to the arrested person that he has a right under the law to get himself medically examined. As observed by Supreme Court in Sheela Barse V. State of Maharashtra-3 it is also desirable that giving of such intimation and making enquiries should be in the absence of the police officer. The magistrate, before making an enquiry from the arrested person, should ensure that no police oﬂicer is present along with the accused. We are of the opinion that Section 54 needs amendment to make it more effective and meaningful. We are further of opinion that the amended section should set out in detail the matters to be record- ed in the medical report. We may incidentally note that in Uttar Pradesh by U.P. Act 1 of 1984 amendments have been made in Section 54.

7.5 Comments on the Working Paper We may mention at this stage that along with our Working Paper we had invited views on the question as to whether there should be a provision for co- mpulosry medical examination of accused in every case of arrest or during interr- ogation. There has been a mixed response to the question. Majority of the police oﬂicers and some of the lawyers do not consider it necessary. However, a seni- or police oﬂicer and some other persons are of the opinion that there is necessity '. Law Commission of India, 84th Report on "Rape and Allied Ofﬁences----Some Questions of Substantive Law, Procedureand Evidence".

*. Code of Criminal Procedure Amendment Bill, 1994 (9th May, 1994). '. AIR 1983 SC 378.

to provide for compulsory medical examination especially in cases of custodial crimes. Some of the responses suggest compulsory medical examination of a per-

son immediately on his arrest and before interrogation. We are unable to accept this suggestion, as it will delay investigation. , 7.6 Recommendation In View of the above discussion, we reommend that section 54 of the code of Criminal Procedure, 1973 should be amended to incorporate the points made in paragraph 7.4 of this Chapter. While drafting the amendment for incorport- ing the details of medical report, assistance may be taken from the Law Comm- ission's 84th Report, Chapter 4.

CHAPTER 8 FIRST INFORMATION REPORT AND INQUIRY .8._l Introduction Chapters 12 and 13 of the Code of Criminal Procedure, 1973 lay down the procedure for investigation of the offence and trial of the accused. The police mach- inery ii. ignited on receiving information relating to the commission of an offence. Such itiformation, if relating to a cognizable offence, is recorded under section 154 and if the information is non-cognizable, it is recorded under section 155. Both tliese sections are important, as, if the scheme of the section is carried out in its fullness, the machinery of criminal process at the pre-trial stage (arrest, interrogation, investigation, forwarding of the report to the court) is set in mot- ion.

On receiving information of a cognizable offence under section 154, the police has pcwer to investigate without order of any court, whereas under section 155 the police oﬂiccr has no power to investigate non-cognizable offence without the order of a magistrate. Any information relating to the commission of a cogniz- able or non-cognizable offence if given to the police must be recorded in accord- ance with Sections 154 and 155. Generally, this is not done and it is, more so, in the case of custodial crimes. We propose in the secceeding paragraphs of this chapter to examine some of the factors contributing to the above situation and to sugg est such measures by way of law reform as appear to be necessary.

8.2 Nun-Registration of Information Section 154 of the Code of Criminal Procedure, 1973 makes it obiligatory for the police to register information relating to a cognizable offence. Section 157 further makes it obligatory for the police to investigate the facts and circumstan- ces of the case and to take measures for the discovery and arrest of the offender. Unfortunately, compliance with these provisions is very often wanting even in non-custodial offences. Non-registration of complaints is a common malpract- ice in police station. There are several reasons for this malady. The National Police Commission took note of the act that in a study conducted by the Indian Institute of Public Administration, New Delhi, on the "Image of the Police in India", it was found that over 50 percent of the respondents had mentioned non-regist- ration of complaints as a common malpriactice in police station. The National Police Commission1 further set out several factors accounting for such non-re- gistration which included extraneous inﬂuence and corruption, besides the dis- inclinazion of the staff to take on additional load of investigational work in the midst of heavy pressure of several other duties. It was also stated that somtimes there was a desire to keep the ﬁgure of reported crime on the records low, in order to show "eﬂicient police administration under their charge". This is due to the statistical approach applied by the higher echelons of police administration, for assessing the crime situation and evaluating police performance, with the result that this attitude permeates the entire heirarchy down the line and is reﬂected among the oﬂicers at the police station in their reluctance and refusal to register cases an and when crimes are brought to their notice. Experience has shown that whenexer a serious attempt was made by the police administration to remove this miilpractice, there was a marked increase in the number of registered cogniz- able ciimes. Refusal by the police to record information relating to commission of an nlfence is a serious matter, which puts the complainant 'to harassment and also af"ects the credibility of the police. We are strongly of the view that there should be effective sanctions for the non-registration of the first information giv- en to the police, of a cognizable offence.

8.3 Section 167A I.P.C. Recommended Uiider the existing law, there is no provision for taking penal action against the police for their refusal to record information as contemplated by Section 151 (1) of the Code. Sub-section (3) of section 154 provides that on the refusal by the

1. National Police Commission, 4th' Report (1980), Page 2.

95-MiJl28MofLJ&CA-6 36 police to register a case, the aggrieved person may send the substance of the complaint in writing to the Superintendent of Police who may investigate the case himself or direct any ofﬁcer in-charge of police station to investigate the same. This procedure is, no doubt, useful as is illustrated by a reported case but it is not, in itself adequate, for meeting the problem of non-registration. The Law Commission of India in its 84th Report on "Rape and Allied Offences" took Etc of this position. The Commission found that administrative action or pi"o'\'r'i nﬁ alternative method of lodging the information do not prove more effective and thereifwas a need for suitable penal provision providing for the punishment of the erring police oﬁicers for their failure to record information relating to commission of a cognizable offence. The Commission recommended the enactment of Section 167A in the Indian Penal Code. The draft of the recommended section was as under :-

"l67--whoever, being an officer in-charge of a police station and required by law to record any information relating to the commission of cognizable offence reported to him refuses or without reasonable cause fails to record such information, shall be punished with imprisonment o£ either descript- ion for a term which may extend to one year or with ﬁne or with both.

The above penal provision, if implemented will certainly have a deterrent effect on the police and it may discourage or prevent the malpractice of refusing to re- gister information relating to commission of cognizable offences. We are in fun agreement with the recommendation made by the Comznisssion in its 84th Re- port and we reiterate the same.

8 .4 Investigation by the police and other agencies Generally, complaints relating to an a offence against the body of a person in_ the custody of police is not recorded by the police officers on account of bro- therhood and fellow feeling. Information or complaint by the wife or children of the deceased person or by the victim, generally ignored and since such a class of persons generally have no resources, they are not in a position to approach the Superintendent of Police or the courts for redressal of their grievances. the police which protects the citizens itself violates the law in committing torture andvassault on a person in custody and if complaint against their action is not recorded by the police, the question arises how the allegation of a civtim or his relation is to be investigated. In such a situation courts have been compelled to direct the Central Bureau of Investigation to investigate the cases. The Supreme Court? inxa case of alleged death in the custody of Directorate of Enforcement and the Delhi High Court3 in the case of alleged death in police custody directed the Central Bureau of Investigation to investigate. There are many reported decisions where the allegations of custodial crimes have been directed to be investigated. In some cases the courts have appointed judicial ofﬁcers like the Chief Judicial Magistrate, Sess- ions Judge or a District Judge to hold inquiry into the police excesses relating to custodial crimes. These episodes show the desirability of having an independent investigating agency to inquire and investigate into allegations relating to custodial crimes.

' In some of the responses to our questionnaire, a suggestion has been made toxhave an independent agency other than the police to investigate the complaints relating to custodial crimes. A suggestion has also been made to entrust investi- gation in such matters to the Central Bureaunof Investigation. There is anoher suggestion to provide for inquiry by judicial ofﬁcers through the agency of istratesband the Sessions Judges as has been done y courts in several cases. av- ingt "given our anxious consideration to this vexed problem, we think that it no be possible or feasible owing to ﬁnancial considerations to set u another i - e'p"enden't agency exclusively for the purpose of investigating comp aints relating to the commission of custodial ofﬁences. We are of the opinion that there is a need for the higher officers of the police administration to impress upon the pol- ice oﬂicers in-charge of the police stations the need to record information relating to the commission of custodial crimes and every administrative eﬁort should be niade to implement this policy and to take disciplinary action against the 'e11'iiig officials. But this administrative exercise would not in itself meet the present nded. We think that it would be desirable and proper to provide by law for the ﬁling

9. Bhagwan Sing}: v. State of Punjab, (1992) 2 All India Crim. Rep. page 546.

of petition on the refusal of the police to register a case of custodial violence be- fore a judicial officer for inquiry and prosecution of the erring police officers. The inquiry by the judicial otﬁcer would keep the police under supervision and cont- rol and it will also inspire people's conﬁdence.

8.5 Recommendation to insert section 154A, Cr. P.C. ;It ap ears to us that having regard to the paramount need for Iprornpt, eﬂ'- ective an ' independent investigation of allegations of offences in the nature 'of custodial crime, the Code of Criminal Procedure should be amended to insert a speciﬁc provision which will ensure such investigation. At the same time, we do ;t1_ot.con_s_ider it necessary, at least for the present, to go so far as to recommend the qteation of a new agency for the purpose. A new agency may not be. easible .o,ygi_ng 'to ﬁnancial considerations, as stated above, even assuming that admini-

gt alive problems will not arise. What we envisage is proposal whereunder; on .116 usal by the police to register a case of custodial (conizable) offence, it'"should be ossible to approach an appropriate judicial authority who should be empow- ered? to conduct a preliminary inquiry and then (if satisﬁed that such action is call- ed for) _to direct the ﬁlling of a complaint before the competent Magistrate. The appropriate judicial authority would be the Court of Session in a case of (alleged) custodial death and the Chief Judicial Magistrate in a case of (allieged) custodial .0lTc,n_ce{not resulting in death. We recommend that a new section 154A be' insert- edin the Code of Criminal Procedure, 1973 on the above lines. It may also be providedthat the Court of Sessions or the Chief Judicial Magistrate (as the case may be) may, if satisﬁed that such action is called for, direct the Ministerial olﬁ--

oer,tornalce a complaint as set out above.

1. In rezdeath Sarvinder Sing}: Grover 1993 (1) Cr. LR 163 (SC). *. Bharat Blmshcm v. The Stale, (1986) Cri. LJ 1624 (Delhi).

CHAPTER 9 INQUIRIES AND INQUESTS INTO DEATH 9.1 Introduction We propose, in this chapter, to deal very brieﬂy with the present legal frame- work as to inquiries and inquests into cases of suspicious deaths.

9.2 Role of the police By section 174 of the Code of Criminal Procedure, 1973, in case the of sui- cide, death by accident or death under circumstances raising a reasonable sus- picion of an offence, the police oﬁicer in charge of a police station or some other empowered oilicer must intimate the fact to the nearest executive magistrate em- powered to hold inquests and to proceed to the place and investigate. In certain cases involving death of a woman and also where there is a doubt regarding the cause of death, section 174(3) of the Code makes a special provision. Section 175 confers on the police oﬂicer power to summon persons as witnesess.

9.3 Inquiry by Magistrate 9 Section 176(1) of the Code, as amended in 1983, inter alia, makes aninquiry by the Magisrate into the cause of death mandatory, where any person dies while in the custody of the police. We need not discuss the procedure in detail as cont- emplated by this section. However, this kind of enquiry has generally been a for- mality and it does not inspire conﬁdence, as the Inquiry is made by an Executive Magistrate.

9.4 Coroners In the towns of Calcutta and Bombay, the Corners Act, 1871 is appiicable and inquests into suspicious deaths are conducted by the Coroner or his deputies, appointed under the act.

9.5 Commission of Inquiry Where the death of a person in police custody or otherwise under suspici- ous circumstances is regarded by the State Government as a ﬁt subject for the appointment of a Commission of Inquiry, an order for the constitution of such a Commissionis made under the Commissions of Inquiry Act, 1952.1 9.6 Special Acts _ Special Acts applicable to particular subjects may provide for an inquiry into deaths, caused in transport such as railways, aircraft, merchant shipping etc. 9 .7 Writ jurisdiction ' _ Where a matter is raised before the Supreme Court or a High court having Jurisdiction, an order for inquiry into the cause and circumstances of death may be passed by those courts under their constitutional jurisdiction.

9. 8 Custodial deaths The provisions brieﬂy outlined by us in this Chapter may not be adequate to specifically deal with the problem of custodial deaths. It is for this reason that we have made a specific and separate recommendation on the subject, which envisages an inquiry by the Sessions Judge in case of custodial deaths or by the Chief Jud- iciatl 13/laagistrate in cases of bodily injuries not resulting in death, oocuring during cus o y.

.._.__.

1. See Report of the Commission of Inquiry into the death of Sn' U. Narashima in the Police, Custody at Sanjeeva Reddy Nagar Police Station, Hyderabad on 10-7-1986, 28 Govt. of Andhra Pradesh (1986): Report ofthe Commission of Inquiry on the death of T. Murlidharan at V. Town Police Station, Vijayawada, on 17-9-1986 (Govt. of Andhra Pradesh, 1987):

R0071 of the Im]m'ry Comrnission on the death of Dadagztla Stmkurialt in the outpcst of Yelleswaram on 26-8-1985 (Govt. of Andhra Pradesh, 1986); Report of the Commission of Inquiry into the death ofsri Macherla Anjiah while in the police custody at Thungathurthi on 6-9-1986 (Govt. of Andhra Pradesh); A.G. Noorani, "Death in Police Custody".

20 Economic and Political Weekly 116] (1985); Special Report "Andhra Sadist Cops and Lockup Deaths", The Blitz, 5 Nov. 1986, p. 10: Sri Sankar Sen's articles in the Statesman 15th& 16th April, 1994.

2. Paragraph 8.5, supra.

CHAPTER 10 SANCTION FOR PROSECUTION 10.1 Present Position We are concerned, in this Chapter, with an important provision of the Code of Criminal Procedure, l973--section l97--under which certain categories of public servants cannot be prosecuted without the sanction of the appropriate Go- emment, the condition being that the oﬁence must have been committed by the public servant ''while acting or purporting to act in the discharge of his ofﬁcial duties". It is common knowledge that public servants prosecuted for misconduct often resort to this section as a bar to prosecution, because the section deprives the court of its jurisdiction to try the offence in question. The words "while act- ing or purporting to act" etc. have not been found to be very precise. Much case law has gathered around them and, notwithstanding this vast mass of case law, an attempt is made, every time a public servant is prosecuted, to take shelter under this section. We are not concerned, for the moment, with the various rami- ﬁcations of the section. What is relevant for our purpose is the question, how an abuse of the protection given by this section to public servants may be avoided in respect of custodial crimes. Of course, a clariﬁcation of the provisions of the section may not necessarily be conﬁned to such crimes.

10 .2 History It is interesting to note that in the Code of Criminal Procedure of 1898 (prede- cessor of the present Code), the corresponding words in section 197, (before that section was amended in 1923), were "is accused as such judge or public servant of any oﬁ"ence." This gave rise to a conﬂict of decisions, as to the precise scope of those words. While one view was that these words covered only cases where the offence was such that the fact of the offender being a public servant was an essential ingre- dient of the offence as deﬁned in law, a contrary view also came to be taken. Thus, according to the ﬁrst view, if a judge used defamatory language while trying a case, section 197 of the 1898 Code did not applyl. On the other hand, according to the wider view, the section would cover all cases where the offence had some connection with the official duty. The amending Act of 1923 substituted the words "while acting or purporting to act in the discharge of his oﬂicial duties", for the words "as such judge or public servant". Courts have usually regarded this amendment as widening the scope of the section.2"3 10 . 3 Amendment After the 1923 amendment, as stated above, the court has to decide in each case whether the offence was committed while purporting to act in the discharge of oﬂical duties. Our concern at the present stage is with the question whether the section needs to be clariﬁed to ensure that the obstacle of requirement of sanction under the section shall not be pleaded as a bar to the prosecution of an officer for custody rela- ted offences. Having regard to the fact that in almost every case, the sanction is sought to be resorted to, we consider it necessary to make a clariﬁcation in this re- gard. Of course, even without such amendment it can be argued that the language of the section will not cover torture or death caused in custody. In a case which arose under section 270(1), Government of India Act, 1935 (worded in similar lan- guagcl-Z), the Federal Court, speaking through Justice Varadachariar, observed as und :-

"In one group of cases it is insisted that there must be something in the nature of the act complained of that attaches it to the official character of the person doing it: In another group, more stress has been laid on the circumstances that the oﬂicial character or status of the accused gave him the opportunity to com- mit" the offence. It seems to me that the ﬁrst is the correct view. In the third

1. Nandu Lal Barak v. N. N. Mirter, (1899) ILR 26 Cal. 853, 861, 862.

2. R. P. Kapur v. Ch.. Daryao Singh, (1965) ] Cri. LJ 593.

3. Hemendra Nath Gupta v. Emperor, AIR 1937 Fat 160, 162.

4. Hart' Ram Sing}: V. Emperor, AIR 1939 FC 43, 56: 40 Cri. LJ 468.

';-U group of cases, stress is laid almost exclusively on fact that it was at a time when the accused was engaged in his official duty that the alleged oifence was said to have been committed. The use of the expression 'while acting' etc. in section 197 Criminal Procedure Code (particularly its introduction by way of amendment in 1923), has been held to lend some support to this view. While I do not wish to ignore the signiﬁcance of the time factor, it does not seem to me right to make it the test. To take an illustration suggested in the course of the argument, if a medical officer, while on duty in the hospital, is alleged to have committed rape on one of the patients or to have stolen a jewel from the patient's person, it is ditﬁcult to believe that it was the intention of the legislature that he couldinot be prosecuted for such olfence except with the previous sanction of the Local Government."

Section l9O of the Code empowers a magistrate to take cognisance of any offence. Section 197 embodies one of the exceptions to the general rule laid down in Section 190, as it regulates the competence of the court and bars its jurisdiction in certain cases. The object and purposes of the section is to ensure that public servants-and oﬁicials while acting in their otﬁcial discharge of duties are not subjected to needless or vexatious prosecutions. Prosecution is permissible only after sanction is granted on the well-considered opinion of the superior authority. The Supreme Court1 held that the offence alleged to have been committed must have something to do or must be related in some manner with the discharge of official duty. No question of sanc- tion can arise under section l97 unless the act complained of is an offence; the only point to determine is whether it was committed in the discharge of oﬂicial duty. There must be a reasonable connection between the act and the otﬁcial duty. There is a plethora of decided cases on the section. We do not cosider it necessary to make any reference to them for the present purpose. However, no court has--taken the view that sanction is necessary for the prosecution of a public servant for custo- dial offences.

10.4 Cases of torture Coming more speciﬁcally to the question of torture, reference may be made to a Madras case where the charge was under section 330 of the Indian Penal Code.' In that case, a Magistrate who had power to arrest and keep under custody persons»sus- pected of certain offences, held in conﬁnement a person whom he had arrested and tortured that person to force him to confess his guilt. It was held that in committing =such torture, he was not purporting to act in the discharge of his official duties and .no sanction under section 197, Cr. P.C. was needed.

We may note here that in the replies received on our questionnaires most of the Advocates and Judges and majority of even police otﬁcers have expressed the-view that sanction in such cases is either not needed or should not be required. (Issue No. 8).

10.5 Need for clarification/Recommendatiou Theoretically, it can be argued with great force that custodial oﬁ'ences.in the nature of ' causing death or bodily injury or commission of sexual offences have no connection with the oﬂicial duties of a public servant and section 197 cannot apply to them. But (as stated above) the very fact that in the past such attempts have been made to seek shelter under section 197, and the,serious possibility that such attempts will continue to be made in the future, would seem.to justify a clariﬁcatory amend-

-ment. There are enough diﬁlculties in the way of the successful prosecution of oifences committed by public servants and one need not add to them by, allowing a provision operating as a bar to prosecution to nullify attempts to bring such oHen~ ders to trial. Our recommendation, therefore, is that below section 197(1) of 'the Code of Criminal Procedure 1973 the following Explanation should be added :-

"Explanan'on--~For the avoidance of doubts, it is hereby declared that the provi~ sions of this section do not apply to any oﬂence committed by a judge or public servant, being an offence against the human body committed in respect of a person in his custody, nor to any other oﬁence constituting an abuse of autho- rity." 9 l. Prabhaknr v. Sinuri, AIR 1969 SC 686.

2. Garrapatlzy Gounder v. Emperor, AIR 1932 Mad. 214.2l5:33 Cri.LJ 557.

CHA?TER ll LAW OF EVIDENCE

11.1 Introduction It is often said that facts constitute nine points of the law. This is all the more true of criminal prosecutions. where a pretty: large bulk of the evidence comes to the court through the medium of witnesses gjiving oral testiinony in court, unlike a civil trial, where some reliable n zterial would available in the shape of documentary evidence, evidence of possession, entries in the boolcs of accounts, certificates issued by public officers, commercial usage, knowledge and lilfV*i'l':lE1tlCf1 available to mem- bers of the family, Government records and the like. fie-sirltts this, in a criminal trial, certain special rules become applicable. In particular , as per judicial practice, the quantum of evidence, or rather, the standard of proof in a criminal trial is higher than that required in 2-. civil suit. Moreover, long history of abuse of the power of criminal prosecution has persuaded so mar}: countries of the world, including India to incorporate in their constitution elaborate protections which operate more fre- quently in a criminal prosecution, than in a civil suit.

11.2 Prosecutions for torture etc. The special features of a criminal charge, with reference to the law of evidence mentioned in the preceding paragraph, become all the more prominent where a police ofﬁcer is to be prosecuted for custodial crimes. To state the position in broad terms (sections 101 to 104, Evidence Act), the prosecution must prove the guilt of the accused'. This problem is highlighted in the context of custodial crimes by reason of the peculiar situation in which such crimes are usually committed. The matter received serious attention at the hands of the Supreme Court in a judgement of l985,1 in the wake of which the Law Commission prepared and forwarded a separate Re- port dealing with prosecutions of police oﬂicers in certain situations? The case related to a highly shocking incident of torture of a suspect in police custody who died within almost six hours of his arrest. When two hours after his arrest, the person was produced before the Magistrate, he was found to be badly injured and in a serious condition. In fact, he could not even walk up to the room of the Magis- trate, who had to come out and examine him in the verandah of the court room. Both the Magistrate and the prison doctor were told by the accused about the beating by the police constable. The constable was convicted by the Court of Session of the offence of culpable homicide not amounting to murder (section 304 of the Indian Penal Code). The case went through the usual hierarchy of appeals with which we are not concerned. It was the Supreme Court which emphasised the extremely peculiar character of the situation where none else than the police officer having custody can give evidence regarding the circumstances in which the person in custody came to receive injuries. Persons on whom atrocities are perpetrated by the police in the police station, are, thus, left without any evidence (except their own statement) to prove who the offenders are. For this reason, the court called for re-examination of the law of burden of proof in such cases. As mentioned above, after this judge- ment, the Law Commission of India made a speciﬁc recommendation dealing with the injuries in custody. to which we refer in the next paragragwli.

11.3 Law Commission's recommendation (113th Report) After the judgement in State of U.P. v. Ram Sagar Yadav, referred to in the preceding paragraph, the Law Commission of India, after a survey of the law, re- commended the insertion of a new section in the Indian Evidence Act, 1872, as under :-

"ll4B. (1) In a prosecution of a Police Oﬂicer for an offence constituted by an act alleged to have caused bodily injury to a person. if there is evidence that the injury was caused during a period when that person was in the custody of the police, the court may presume that the injury was caused by the Police Oﬂicer having custody of that person during that period.

l. State of UP v. Ram Sugar Yudav, AIR l985 SC 416.

2. Law Commission of India, ll3th Report on "Iniuries in Police Custody".

41 42

(2) The Court in deciding whether or not it should draw a presumption 'under sub-section (1) shall have recourse to all the relevant circumstances, including, in particular, (a) the period of custody, (b) any statement made _by the victim as to how the injuries were received, being a statement admissible in evidence,

(c) the evidence of any medical practitioner who might have examined the victim, and (d) evidence of any magistrate who might have recorded the victim's state- ment or attempted to record it."

11.4 Later Decisions It may be mentioned that after the above judgment of the Supreme Court, fol- lowed by the above Report of the Law Commission, the question of burden of proof in such cases has come before the courts more than once. In one of the cases,1 the following observations occur :~ "If a person is in police custody, then what has happened to him is peculiarly within the knowledge of the police oﬂicials who have taken him into custody. When the other evidence is convincing enough to establish that the deceased died because of the injuries inﬂicted by the accused, the circumstances would only lead to an irresistible inference that the police personnel who caused his death must also have caused the disappearance of body."

In another case,2 where the victim taken into police custody was on the next day found dead at a place near the police post, the court held that the burden was on the State how the victim came to sustain the injuries resulting in his death. The need for a change in the rule regarding burden of proof was adverted to in this case also.

11.5 Recommendation for Amendment of Section 114 In the light of the material contained in the preceding paragraphs of this Report, we are very strongly of the opinion that the recommendation made by the Law Commission in its 113th Report should be carried out by inserting Section 114B of the Indian Evidence Act and we would add two points by way of ampliﬁcation. The provision in the ﬁrst place may speciﬁcally include death even though that is implicit in the draft that was recommended in the eralier Report. Secondly, the provisions of the new section should be made applicable to every public servant who has power under the law to arrest and detain a person in custody. The actual placing of the section, we leave to the draftman. We may mention that a response to our Ques- tionnaire the majority have favoured such a rebuttable presumption (Issue No. 4).

ll .6 Section 27, Evidence Act The provisions of the Indian Evidence Act, 1872 relating to confessions particu- larly those relevant for the present purpose are contained in sections 25, 26 and 27 of that Act. While sections 25 and 26 exclude confessions made by a person to a police oﬂicer or confessions made by a person (to a police olﬁcer or to a third person) while in custody, section 27 carves out an exception in respect of cases where the confession is made in the form of information leading to the discovery of a fact, being information given by a person in custody. This section has created several problems of interpretation with which we are not, for the moment, concerned. Our concern for the present is mainly with the possibility that section 27 creates of misuse by resort to malpractice. Let us quote the section 2-

"27. How much of information received from accused may be proved-Provided that, when any fact is deposed to as discovered in consequence of information received from a person "accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

This section, because it constitutes an escape valve against the prohibition other- wise imposed by preceding section or sections in relation to confessions made during the custody of a police officer, tends to create a desire to resort to its provision even where the person in custody is not really volunteering the information. To put it voluntly, what cannot come in because of an exclusionary rule contained in the earlier provisions, would be sought to be brought in by recourse to the permissive rule or enabling provision in section 27. If information spoken of in section 27 is not forth- coming voluntarily, the police may have recourse to procuring the same by other

1. Bhagwan Singh v. State of Punjab, (1992) 3 SCC 249

2. Nlilabati Behera v. State of Orissa (1993) 2 SEC 746 43 means. This is not to say that in every case the information is compelled to be given. But it cannot be gainsaid that the very existence of the section (in the form in which it appears at present in the Act) creates an impression or an urge to resort to means not desirable or legitimate so that the section is pressed into service in situations never intended by the legislature. We are convinced that the section needs agiendment, if not repeal, in order to completely ward off the tendency mentioned 3 ove.

In order to meet the malady two courses are open. Section 27 may be repealed in toto and that is our ﬁrst preference. But if that course 15 not acceptable, the mini-

A mum that can be done is to revise the section so as to conﬁne it to make admissible the fact discovered but not the information. This alternative, though it is the milder one, will be more intelligible by presenting a brief analysis. The analysis is as under :--

(1') A criminal trial is concerned with proof of facts which are at issue.

(ii) If the facts in issue cannot be directly proved, the law allows them to be proved by facts declared to be relevant by the law.

(iii) If a certain fact relating to discovery, such as discovery of a weapon, discovery of clothes etc. of the victim or any other relevant fact, is the result of the so-called information given by a person, the requirements of the trial would be satisfied by taking the fact of discovery on the record (assuming that it is a relevant fact).

(iv) The law need not go further and admit the confession part of the infor-

mation. For the reasons stated above, the confession part is mostly tainted with coercion and torture even though this may not be on the surface.

(v) The information part. if it does not amount to a confession may not be objectionable in theory but in practice, it is not easy to keep the infor- mation element and the confession element separate from each other.

Therefore, if the milder alternative of merely amending section 27 (and not its total repeal) is to be adopted, we would recommend that section 27 may be replaced by the following section 2--

"27. Discovery of facts at the instance of the accused.--When any relevant fact is deposed to as discovered in consequence of information received from a person accused of any offence, whether or not such person is in the custody of a police oﬂicer, the fact discovered may be proved, but not the information, whether it amounts to a confession or not".

1117 Recommendation to extend Sections 25 and 26 to other oﬂicers Weare further of the view that the exclusionary provisions contained in sections 25 and 26 of the Evidence Act which are, at present, conﬁned to police oﬂicers, should beextended to all public servants having power to arrest and detain persons in cus- tody. Ifthis recommendation is accepted, it follows that section 27 of the Act (unless :it isrepealed as per our first alternative) should also be extended to such public ser-

wants (after it is amended on other points according to our second alternative re-

_ commendation in the preceding paragraph).

95-M/J l28MofLJ&CA-7 ("':'¥", '.1 1.2 (J€L'3T'.*EPEl'vI§iA'l"ION

12. 1 Introduction As has been indicated in o; .: of the earlier Chapters. legal action in regard to custodial cl-inzes could lie pi.-evr:.«:' r--, ﬂratoi-_v, punitive or remedial. In the present Chapter, we pi'C}3o.s-3 to Lira'. \r- h the remedy in the shape of compensation to be awarded to the victim of a <,;:s:cdial crime or (in the case of his death) to his dependants.

12.2 General Law Under the general law, piinxarilv the law of torts, compensation is available and can be claimed at the instance ol' the victirn against the person causing death or bodily injury, provided the i's:quii'er»?r.:nts of civil liability in that regard are satisﬁed. Leaving aside special '3FlflC'?,*l"iC1liS, such as the Motor Vehicles Act, 1988, the Work- men's Compensation Act, I923 'v2'l the Public Liability Tnsurance Act, 1991, the mat- ter is basically governed by L7,- prinei_nles oi" the law of torts as modiﬁed or supple- mented by relevant lcgis!r.tio;1. In the case of wrongful death, it is the fatal Acci- dents Act, 1855 which Tsecostes 2:' " able in general. The Act essentially deals with, what may be called, "wrongf'ul dea ", an aspect amply indicated by the convenient and concise phrase "wrongful act, neglect or default". We need not enter into de- tails of the content of the Act for the present nurpose but it will suﬂice to note that the Act is referred to specifically in section 357(l','-(C) of the Code of Criminal Proce- dure, 1973.

12.3 State's liability for compensation in Tort The general law of torts 2' the English Common Law as imported into India on the principle of justice, equity and good conscience, with statutory modiﬁcations of that law is in force in India. Article 300 of the Constitution provides for the ﬁling of a suit against the Union as well State Government. The second part of the Article provides, inter aiia, that the State may sue or be sued in relation to its affairs if a correspondin g Province miglit have been sued or be sued if the Constitution had not been enacted, subject to any law made by legislature. Thus if a suit is to be ﬁled against the Government in tort, the suit can be ﬁled if such a suit could have been ﬁled against the corresponding provisions of the Constitution had not been enacted. The Article contemplates that the appropriate Legislature would enact law in this respect. The Legislature has, however, made no law as contemplated under Article

300. The question whether the Gov:-rnment is liable to be sued for damages in tort at the instance of an aggrieved citizen remains in a state of quandry and confusion on account of non-exercise of legislative ibnction. Ordinarily, in a welfare state, a suit in tort for damages should be maintainable against the State and its servants causing injury to an individual. But in the absence of appropriate legislation, as contem- plated by Article 300, the liability of the State for the tortious acts of its servants remains the same as it existed prior to the enactment of the Constitution.

Prior to the Constitution the doctrine of the common law of England that King commits no wrong and he cannot be liable for negligence or misconduct, consequently he could not be responsible for the negligence or misconduct of his servants, was in force. This doctrine was based on the premise that the State was not liable for damages caused to any individual in the exercise of sovereign functions. However in England this legal position has been substantially altered by the Crown Proceed- ings Act, 1947. There the law has been liberalised and the distinction between the sovereign and non-sovereign functions and governmental or non-governmental functions are no longer in vogue to determine the liability of the State. In India no similar steps were taken. The Law Conunission of India considered the question of the liability of the State in tort and it recommended that under Article 300 it was necessary to enact law affording protection to the citizens as even in England the immunity of the Crown was substantially reduced} The Law Commission recom- mended that legislation be enacted l'll3;l{ll"" the State liable for the torts committed by ~e

1. First Relﬁort of the Law Conzniissfon of India on 'Liability of State in Tort'.

44 45

its employees while acting within the scope of their employment. In respect of duties of care imposed by the statute, the C-JlI1l'l1lSSlOl'l recommended that if a statute autho- rised the doing of an act, which was in itself injurious, the Slate should not be liable, but the State should be liable without proof of negligence for breach of statutory duty imposed on it or its employees which may cause damage. It further recommended that the State should be liable if in the discharge of statutory duties imposed upon it or its employees, the employees act negligently or maliciously and whether or not discretion is involved in the exercise of such duty. The recommendations made by the Commission, have, however, not been implemented so far and no law as recom- mended has been enacted, with the result that there is considerable amount of un certainty on the question of liability oi' the State for the tortious acts of its servants. We reiterate the Commission's recommendations in this regard and recommend that the relevant law as suggested should cc enacted.

12.4 State's Judicial decisions on the question of tortious liability In the absence of legislative exercise, the Supreme Court and High Courts by their judicial innovations have been awarding damages against the State for the tor- tious acts of the public servants of the State. 1" he Supreme Court in State of Rajas- than v. Smt. Vidyawatil awarded damages for injury caused by a Government car which was rashly and negligibly driven by Ll13 employee of State of Rajasthan. The Supreme Court, upheld the liability of the State for damages in respect of tortious acts committed by its servants within its scope of empioynient. The View taken in Vidyawati's case was, however, subsequently not approved by a Constitution Bench of the Supreme Court in Kasturi Laiis case} 'CL-1el'acts of that case were that Kasturi Lal the plaintiff was arrested by the police on the suspicion of stolen property and on a Search of the body of the plaintiff, a large quantity of gold was seized and kept in Malkhana. On his release the plaintiti' claimed return or' the gold seized from him but that was not returned on the ground that the Head Coiistable in--charge including the gold seized from the plaintiff. On a suit by the plaihmi' against the State for the return of the gold or in the alternative for damages for the loss caused to him, the trial court decreed the same. On appeal, the High Court set aside the decree. The plaintiﬁ approached the Supreme Court in appeal. A Coiistitutioil Bench of the Supreme Court relying on the doctrine of sovereign immunity held that since no law had been enacted, as contemplated by Article 3UU, the suit was not maintainable on the ground of the immunity of the State for the tortious €1CtS of its servants. The Court observed that the doctrine of sovereign immunity followed in India on the basis of common law principle which prevailed in Englalul in regard to claims made against the State for the tortious acts committed by its sen/ani.s. T he Court further held that this immunity was with regard to the damages resulting from injury caused by negligent or malicious acts of the servants if the employment was referable to sovereign power. The Court referred to the non-exercise of legislative power and expressed its concern in the following words :--

"In dealing with the present appeal, we have ourselves been disturbed by the thought that a citizen whose property was seized by process of law, has been told when he seeks a remedy in court of law on th: ground that his property has not been returned to him, that he can make no claim of the State, that we think, is not very satisfactory position in law. The remedy to cure this position, however, lies in the hands of the legislature."

Unfortunately, the anxiety expressed by the Supreme Court, and the recom- mendations made by the Law Commission both have gone unheeded, as no law has been enacted, as yet, with the result, the law laid down by the Constitution Bench of the Supreme Court in Kasturi Lal's case holds the ﬁeld.

12.40:) The Supreme Court, however, exercising its power under Article 32 has awarded damages to the petitioners for the injuries suffered both on account of the tortious act of its servants and also on ground of the State being liable to pay compensation for the violation of their Fundamental Rights. A survey of the decided cases would reveal that the Supreme Court in its judicial activist role adopted two ways to redress the victims of abuse of power by the public servants as palliative to the victims by way of right of compensation and to penalise the State for the negligence of its ser- vants. We do not consider it necessary to discuss all these cases in detail, however,

1. AIR 1962 SC 993.

L Ktulurt La! v. State of U. P., AIR 1965 SC 1039.

at brief reference may be made to some of them.1'15 The High Courts have also I awarded compensation under Article 2.26 of the Constitution.1**'17 Apart from grant-.

ing relief under Article 32 of the Constitution, the Supreme Court has in a number of cases upheld the award of damages to the aggrieved person against the State."-"

In Nilabati Belzra v. State of Orissa, (1993, 2 SCC 476), the Supreme Court referred to its decision in Kasturi Lal's case and observed that the principle of sove- reign immunity does not apply to a claim made under a public law, it accordingly directed the State of Orissa to pay damages to the petitioner in the case of custodial death as it violated Article 21 of the Constitution. The Court observed that the State had a right to be indemniiied and to take such action as may be available against the wrong doers in accordance with law. The brief survey of the judicial decisions would show that though technically Kasturi Lal's case still holds the ﬁeld, nonetheless courts have been granting relief to the aggrieved persons. But the legal position is not clear, it is, therefore, necessary that statutory enactment is made with regard to the State's liability for the tortious acts of its servants.

12.5 Machinery for claiming compensation Assuming that conduct resulting in custodial death or constituting any other custodial crime is a tort, the person Clliltled to damages under the law of torts can, under the general procedure, ﬁle a civil suit in the competent civil court against the persons liable. The question "who are the persons liable" will have to be determi- ned in conformity with the principles of the law of torts, which inter alia, are relevant for matters such as conditions of liability (including the requirement of fault), im- munity from liability and vicarious liability of governmental and non-governmental agencies. As stated above, special enactments applicable to particular types of situations may fortify or supplement the general rule prevailing relating to the law 0 torts.

12.6 Section 357 of the Code Apart from the machinery of the civil court, the provisions of section 357 of the Code of Criminal Procedure, 1973 can be utilised, whereunder a criminal court can, in certain circumstances, make an order the payment of compensation by a convicted person.2° Such order can be passed not only where ﬁne is imposed Section 357(1), but also where any other sentence is imposed section 35 7(3).

12.7 Recommendation to insert section 357A In our opinion, in order to have a speciﬁc provision regarding compensation in custodial offences, it would be proper to insert in the Code of Criminal Procedure section 357A, a draft whereof is given below. Our intention is to provide speciﬁcally for the joint and several liability of the guilty ofﬁcers and the Government and to set out the important factors to be taken into account in assessing the compensation, we recommend the following section.

. State of Rajaxt/tan v. Vidyawizti, AIT 1862 SC 993.

. Sir Basava Patil v. State of Mysore, AIR 1977 SC 1749.

. Nilabati Behra v. State of Orissa, (1993) 2 SCC 746.

. State of Gujarat v. A/Iemom Mohummed Hazi Hussain, AIR 1967 SC 1885. . Rudal Shah V. State of Bihar, AIR l983 SC 1086.

. Sebastian AI. Ma/1g/tray v. Union of India (1984) 1 SCC 339.

. B/rim Sing/1 v. State of] & K, 1988 Supp. SCC 564.

B/u'm Singh v. State of] & V (1985) 4 SCC 677.

. Saheli v. Commissiimer of Police (l990) 1 SCC 422.

10. In Re zdeatli of Sarvinder Sinqh Grover, (1993) 1 Cr. L. R. 163 (SC).

11. V. Varmlamma v. Stateoj/ind/iraPrac1esh, 1993 (1) SCALE 19.

12. Rethinam V. State of Gujarat, 1993 (2) SCALE 631.

13. Ravi Kanth v. Director General of Police, State of Maharashtra, 1990 AC] 1060.

14. R. Gandhi v. Union o_f'I/iziiu, AIR 1980 Mad20.

I5. Nalim' Bhcmot v. Cammisszorzer of Police, 1990 AC! 345.

16. Sir Basava Paul V. State of lllysare, AIR 1977 SC 1749.

17. See para 3 29 Supra.

18. AIR 1962 SC 1 :

;Q\lO\LII-5'-I3I\)|-* 0 47 Section 357A, Cr. P. C. Compensation in custodial offences (1) Notwithstanding the provisions of Section 357, where the court convicts a public servant of an oifence resulting in death or bodily injury being an oﬁ'ence constituted by an act of such public servant against a person in his custody, the pro-

visions of this section shall apply.

(2) The court, when passing judgment in any case to which this section applies, shall order that the Government in connection with the affairs of which such public servant was employed at the time when such act was committed, shall be liable jointly and severally with such public servant to pay, by way of compensation such amount as may be speciﬁed in the order. -

(3) An order for payment of compensation under this section may also be made by an appellate court or by the High Court or Court of Session when exercisingits» powers of revision.

(4) While rewarding compensation in any subsequent suit relating to the same matter, the civil court shall take into account any sum paid or recovered as compensat- ion under this section.

(5) The amount awarded under this section shall not be less than 2

(a) Rupees twenty ﬁve thousand in case of bodily injury, not resulting in death;

(b) Rupees one lakh, in case of death;

- (6) In ﬁxing the amount of compensation under this section, the court shall, subject to the provisions of sub-section (5), take into account all relevant circum- stances,including (but not necessarily limited to) thefollowing :

(a) the type and severity of the injury suffered by the victim;

(b)_ the mental anguish suffered by the victim;

(CA) the expenditure incurred or likely to be incurred on the treatment and rehabilitation of the victim;

(d) the actual and projected earning capacity of the victim and the impact of its loss on the persons entitled to compensation and other members of the family;

_,(e) the extent, if any, to which the victim himself contributed to the injury.

(f) the expenses incurred in the prosecution of the case.

(7) In case of death or permanent disablement of the victim, the court may.

take into-account the estimated annual income of the victim as multiplied by the.

number of years of his estimated span of life.

(8). Pending ﬁnal determination of the proceeding, the court may award, by way, of interim relief, such compensation as it may think proper in the circumsances of the. case at any stage of the case, even before judgment of conviction is passed.

5 (9) The Government may recover any amount paid by it as compensation under this section wholly or partly as it may think proper, from the delinquent public servant." "

CHAPTER 13 ORGANIZATION OF THE POLICE 13.1 Introduction In the earlier chapters, we have referred to the various aspects of the custodial crimes arising out of abuse of power by the police and other public ofﬁcers. The police is in the dock, day in and day out, it has to face mounting severe public criticism. The allegations of incompetence, corruption, ruthlessness, violation of human rights, communalization, unlawful and partisan behaviour are often made against the police. But one should not have the feeling that all policemen are 'blood-thirsty hounds.' The police is in an essential organisation being part of the Executive to maintain law and order and to prevent crimes. The police is a necessity for a civilized society. The citizens look to the police for security and protection and it has served the society well. Unfortunately, due to various factors, the police in India has not been able to play its effective role in people's service. It is proposed to deal in this chapter certain matters concerning police organization. Of course, this report is not on the organisation of police force, but we consider it necessary to refer to some of the factors which are responsible for the malpractices connected with investigation of crimes, as in our opinion, unless those factors are removed the police as a whole will continue to suffer with the maladies and it would be diﬁicult for it to transform itself into an instrument of service to the people.

13.2 Role of Police under British Rule The present police system in India is a British legacy. It is the creation of British Government and it rests on the basic ideals of efﬁciency and subordination to the law of the land. During British Rule the rule of police was limited to the role invested by the Police Act, 1861---whose main objective was to make the police an eﬂicient instrument for the prevention and detection of crime and to use it as an effective weapon at the disposal of the foreign government to put down ﬁrmly any challenge to its authority. Their approach was not public service oriented, instead their objective was to maintain status quo. During the British Rule in India, the police had to take effective repressive meaures, at the bidding of the then rulers, against our own people engaged in freedom struggle, as a result of which, the image of the police was greatly tranished and it came to be identiﬁed with tyranny and oppression.

13.3 Role of Police after Independence After India became independent, it declared itself to be a Republic. It ceased to be a Police State, instead it was transformed into a Welfare State. The Constitution guranteed Fundamental Rights to the citizens and it also enacted new legislations, special laws, regulatory measures and progressive law reforms. The implementation and enforcement of many of these laws was entrusted to the police. Various laws including measures like Maintenance of Internal Security Act, Defence of India Act, Terrorist and Disrupitve Activities Act conferred wide discretionary power on the police. Such powers are to be exercised in conformity with the Fundamental Rights and in accordance with the statutory provisions. Unfortunately, the police was not reorganized to meet the new challenge. Recruitment policies, training and hierarchical controls introduced during British days have basically continued to be in force even today with the result that the police have not been able to meet the need of the society.

In recent years, police have to perform diﬂicult and delicate task particularly in view of the deterioriating law and order situation, communical priots, political tur- moil, students unrest, terriorist activities, radical politicism lihe extremists and among others, the increasing number of white collar crimes like bribery and corruption, evasion of taxes, violation of ﬁscal laws and smuggling, etc. Organized criminal gangs have taken strong roots in the society. Such criminal gangs use ultra modern wea- ponry, explosives and many other devices to completely smash the objectives without leaving a little, or no evidence at the place of offence. Similarly, dealing with insurgent and terrorist groups is also vastly different from dealing with the traditional criminals. This category of criminals is also well trained, hardened and equipped with ultra 48 49 modern weaponry. An ordinary policeman carrying a small ruler or even a gun does not match to the excrutiating speed of terrorists. The widening of the sphere of activities and responsibility has confronted the police with challenges and crisis ushering in a series of new and signiﬁcant problems, for which they have not been trained or equipped so they fail to serve the people in accordinace with the Constitu- tional and human rights norms.

In addition to aforementioned factors, prolonged stress and strain and a long hours of duty in connection with law and order and VIP duty, very little time is left for police to investigate cases for detection of crimes. The police, under pressure of quota of work assigned to them, driven by a desire to achieve quick results, leave the path of patience, reticence and scientiﬁc interrogation, instead they resort to the use of physical force in different forms to pressurise the suspect or accused to disclose all the facts known to him. While law recognizes the need for use of force by the police in the discharge of their duties on some speciﬁed occasions like the dispersal of violent mob or the arrest of a violent bad character who may resist the arrest, they use force against the individual in their custody.

13.4 Reports of Police Commission The Indian police today ﬁnds itself handicapped not only in its numerical strength but also in its adquate infrastructural facilities like modern weaponry. equipment, communication network and more importantly need based training which is of paramount importance to make it eﬂicient and effective instru- ment of law enforcement. The National Police Commission has gone into the whole range of problems of police administration and it has made several reports for reform in the police organization. In one of its reports, the Police Commission (January 1980) emphasized the need to modernize the method of investigation by harnessing science and technology to aid eiﬁcient police perfor- mance. It also made recommendation for improved facilities for communication, transport, computerized study and assistance from forensic science. The recommenda- tions highlighted the establishment of more Central Forensic Science Laboratories and Medical Examination Laboratories, State Handwrting Bureaus and Regional Laboratories to handle certain types of cases which frequently arise in the normal crime work of the state. It also recommended for the constitution of Central investi- gation effective, the Police Commission recommended that training should be made more scientiﬁc. By another report the Commission made a series of recommendations to improve effectiveness and eﬂiciency of the police by making administrative changes. The recommendations made by the Police Commission have not been fully implement- ed. In our opinion, the Police Commission's Reports, if implemented,will go a long way to remove the causes of aberration in police and minimise the chances of abuse of power and custodial crimes.

13.5 Need for separation of Investigation Wing from Law & Order Wing The enactments relating to the police force as operative in various parts of India

---whether it be the Police Act, l86lor the Provincial Act or State Act governing the police, primarily contemplate at least two major functions for the police force. The ﬁrst is the maintenance of law and order, while the second is the investigation of offences, particularly cognizable offences. Prior to independence when the population was low, the crime rate was not high and the area to be governed by the then rulers was not very large, there was no need to keep these functions separate. Now the situation has changed, and it seems to us that elﬁciency and integrity in the perfor- mance of the functions of the police cannot be maintained at a reasonable level with- out embarking upon a scheme of separation of the two functions. Of course, this pre-supposes that the structure and organization of the police force in each State will have to be re-modelled a matter which we do not propose to deal with in detail. But there is no doubt that such a change is needed from a variety of angles.

13 . 6 Recommendations relating to Police Organisations We are of the opinion that, to a large extent, the problem of torture and other malpractices in the course of investigation of offences owes itself to the fact that police oﬁicers who are kept busy in other work do not ﬁnd time and cannot have an inclination to devote their best intellectual and physical resources to the investigation of crimes. The faculties of the mind which must be brought into play at the time of investigation are different from those which are to be exercised when dealing with an urgent situation of breach of public order. It is desirable that there should be a separate wing for the investigation of oﬂences, manned by omcers of the necessary 50 expertise and approach who can devote their full time energy to the detection and investigation of cognizable offences. We are aware that this is not a new approach. We cannot also say that it can be put into practice very easily. Beside this (except for Union Territories), it can only be put into concrete shape by the State Govern- ments. Nevertheless, we must reiterate our View in this regard, so that the cause of personal liberty and other fundamental rights may not suffer, merely be reason of oﬁicial lethargy or inaction. The scheme may involve a little bit of additional expendi- ture in the beginning. However, in the long run, it may save not only time and duplicat- ion of Work, but also money. If any work studies are to be made in this reagrd, the same can be undertaken. The exeperience of those States in which such a scheme might have been tried in the past can also be taken into account. But, at the same time, the idea should not be thrown out at the outset, because its adoption could go a long '-way in contributing to a solution of a problem which has baﬂled well-meaning persons for quite some time and which is .not going to disappear in a reasonable time »-unless it isdealt with on a variety of fronts.

The Commission feel's that immediate measures should be taken to improve the functioning of the police. We accordingly recommend that the following measures be taken :-

(i) Investigating agency should be separated from the law enforcement wing;

(ii) "Investigating agency should be trained especially to have an intimate knowledge of the procedural and penal provisions of various criminal and economic laws and they should also 'be trained in modern sophisticated gadgets and equipments;

(iii) Special stress must be laid in the training programme requiring the Fpolieemen to respect the Constititutional and human rights and laws of 'the land in the discharge of their duties; and

(iv)'0rientation and refresher courses should be organized to apprise the police of the new developments and techniques in investigation.

CHAPTER 14 RECOMM ENDATIONS 14.1 In the light of the discussions made in the earlier Chapters of this Report, the Commission is of the opinion that it is essential to make appropriate provisions in the Indian Penal Code, 1860, the Code or Criminal Procedure, 1973, and the Indian Evidence Act, 1872 to foreclose torture in custody by public servants and to protect the inteest of the victims of custodial crimes. The proposed amendment in the relevant enactments have already been discussed in the preceding Chapters of the Report but for convenience a draft of the proposed amendments is being set out hereinafter.

14.2 Indian Penal Code The Law Commission reiterates its earlier recornnenclation made in the 135th Report on 'Women in Custody'. We recommend that a new section 166A be inserted in the Indian Penal Code, 1860 for punishing the violation of section 160 of the Code of Criminal Procedure, 1973 :

"l66A. Whoever, being a public servant-

(a) knowingly disobeys any direction of the law prohibiting him from requiring the attendance at any place of any person for the purpose of investigation into an offence or other matter, or

(b) knowingly disobeys any other direction of the law regulating the manner in , which he shall conduct such investigation, to the prejudice of any person shall be punished with imprisonment for a term which may extend to one year or with ﬁne or with both."

The proposed oﬂence should be cognizable bailable and triable by any magis- trate."

(Para 6 . 5) 14.3 The Commission reiterates need for insertion of section 167A in the Indian Penal Code, 1860 as recommended in its 84th Report of 'Rape and Allied Offences, and some question of substantive law, procedure and evidence.' (para 3. 3), onthefollowinglines :-

"167A.--Whoever, being an oﬂicer in charge of a police station and required by law to record any information relating t3 the commission of a cognizable olfence reported to him, refuses or without reasonable cause fails to record such informat- tion, shall be punished with the imprisonment of either description of ora term which may extend to one year or with ﬁne or with both."

(Para 8.3) 14.4 Code of Criminal Procedure, 1973 The Commission recommends that section 41(1) of the Code of Criminal Procedure, 1973 be amended and a new section 4l(1A) be inserted in the Code of Criminal Procedure, 1973 on the following lines :

"4l(lA) A police oﬁicer arresting a person under cluase (a) of sub-section (1) of this section must be reasonably satisfied, and must record such satisfaction, relating to the following matters :-

(a) the complaint, information or suspicion referred to in that clause, is not only in respect of a congnizable offence having been committed, but also in respect of the complicity of the person to be arrested, in that offence;

(b) arrest is necessary in order to bring the movements of the person to be arrested under restraint, so as to inspire a sense of security in the public or to prevent the person to be arrested from evading the process of the law or to prevent

- him fromlcommitting similar offences or from indulging in violent behaviour in genera."

(Para 5.20)

- 51 95-M/J128MofI..J&CA--8 52 14.5 It is further recommended that recommendations No. l and 2 made in the Law Commission of India's 135th Report (Women in Custody) wich relate to the arrest of women, should be implemented.

(para 5.17) 14.6 The Commission recommends that a new section 4l----A should be inserted in the Code of Criminal Procedure, 1973 on the following lines :--

"41A. Notice of appearaIzce.------Where the case falls under clause (a) of sub- section (1) of Section 41, the police officer may, instead of arresting the person concerned, issue to him a notice of appearance requiring him to appear before the police officer issuing the notice or at such other place as may be speciﬁed in the notice and to cooperate with the police officer in the investigation of the oﬂence referred to, in clause (a) of sub--section (1) of Section 41. (2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of that notice.

(3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence feferred to in the notice unless, for reasons to be recorded, the police oﬂicer is of the opinion that he ought to be arrested.

(4) Where such person, at any time, fails to comply with the terms of the notice, it shall be lawful for the police ofﬁcer to arrest him for the offence mentioned in the notice, subject to such orders as may have been passed in this behalf by a competent court."

(Para 5.21)

14. 7 The Commission is of the view that there is a need to insert a new section 50-A after secton 50 in the Code of Criminal Procedure, 1973 on the following lines :--

50A (1) Whenever a person is arrested by a police officer, intimation of the arrest shall be immediately sent by the police ofﬁcer (along with intimation about the place of detention) to the following person :-

(a) a relative or friend of other person known to the arrested person, as may be nominated by the arrested person;

(b) failing (a) above, the local legal aid committee.

(2) Such intimation shall be sent by telegram or telephone, as may be con-

venient, and the fact that such intimation has been sent shall be recorded by the police officer under the signature of the arrested person.

(3) The police officer shall prepare a custody memo and body receipt of the person arrested, duly, signed by tim and by two witnesses of the locality where the arrest has been made, and deliver the same to a relative of the person arrested, if he is present at the time of arrest, or, in his absence, send the same along with the intimation of arrest to the person mentioned in (1) above. ' (4) The custody memo referred to in (3) above shall contain the following particulars :-- -

(i) name of the person arrested and father's name or husband's name;

(ii) address of the person arrested;

(iii) date, time and place of arrest;

(iv) offence for which the arrest has been made;

(v) property, if any, recovered from the peson arrested and tken in to charge at the time of the arrest; and

(vi) any bodily injury which may be apparent at the time of arrest.

(5) During the interrogation of an arrested person, his legal pratitioner shall be allowed to remain present.

(6) The police ofﬁcer shall inform the person arrested, as soon as he is brought to the police station, of the contents of this section and shall made an entry in the police diary about the following facts :-- .

(a) the person who was informed of the arrest;

(b) the fact that the peson arrested has been informed of the contents of this section; and

(Para 5. 16)

14. 8 The Commission is of the opinion that in addition to the recommendations contained in Chapter 4 of the 84th Report of the Law Commission, section 54 of the Code of Criminal Procedure be amended on the following lines :

"54. Examination of arrested person by medical practitioner. When a perso- who is arrested, whether on a charge or otherwise, alleges at any time during th the period of his detention in custody that the examination of his body may afford evidence which will disprove the commission by him of any offence; or is produced before a Magistrate, the Magistrate shall inform the accused so arrested, about his right of medical examination which will establish the commiss- ion by any other person including the public servant of any offence against his body committed during the custody and record in writing about the fact of communication of such right to the accused who exercised this right without any coercion or fear of any public servant having effected his arrest or without the presence of such public servant, the Magistrate shall if so alleged by the arrested person, unless the Magistrate considers that the allegation is made for the pur- pose of vexation or delay or for defeating the ends of justice get the examination of the body of such person by a registered medical practitioner in the manner prescribed hereunder and mention the following particulars :--

(a) The examination of the accused victim shall be conducted by a Registered Medical Practitioner or through a Government Hospital available, as the Magistrate may direct.

(b) The Registered Medical Practitoner to whom such person is forwarded shall without delay examine him/her and prepare a report and speciﬁcally record the following details :

(i) the name and address of the victim and of person by whom he was brought;

(ii) the age of the victim;

(iii) injuries external/ internal if any, on the person;

(iv) general mental condition of the victim;

(v) other material particulars and any other relevant details.

(c) The report of the said examination shall precisely state the reasons for such conclusion arrived at.

(d) The exact time of commencement and completion of examination shall also be noted in the report and the registered medical practitoner shall with-

out delay forward the report to the Magistrate who shall thereafter act in acgordance with the provisons contained in the Code of Criminal Pro- cc ure."

(Para 7. 6) 14.9 With a view to having a greater and eﬁective compliance of the various safeguards, the Commission recommends that section 57-A be inserted in the Code of Criminal Procedure, 1973 on the following lines "57A. Duty of Magistrate to verify certain facts----When a person arrested without warrant is produced before the Magisrtrate, the Magistrate shall, by in- quiries to be made from the arrested person, satisfy himself that the provisions of sections . . . . . .have been complied with (section relating to safeguards in connection with arrest, rights on arrest, etc. to be entered) and also inquire about, and record, the date and time of arrest."

(Para 5.22) 14.10 Ifthe police officer refuses to reord the FIR, the aggrieved person should have a right to ﬁle a petition (i) before the Chief Judicial Magistrate in the case of custodial injury or torture and all custodial crimes other than killing and (ii) before 54 the Sessions Judge in the case of death in custody. Accordingly, the Commission recommends that a new Section 154A be inserted in the Coce of Criminal Procedure, 1973, on the following lines :--

"l54A. Notwithstanding anything contained in Section 154.

(1) Any person (including Legal Aid, Centre or NGO, or any friend or relative) aggrieved by a refusal on the part of an officer in charge of a police station to record the information referred to in sub-section (1) of that section, in cases relating to custodial offences, may ﬁle a petition giving the substance of such information-- 7

(a) before the Chief Judicial Magistrate , in case of custodial offences other than those involving death of the victim; or

(b) before the Sessions Judge, in cases of custodial offences involving death of the victim.

(2) The Chief Judicial Magistrate or the Session Judge, if satisﬁed, on a preliminary enquiry that there is a prima facie case, may himself hold enquiry into the complaint or direct some other Judicial Magistrate or Additional Sessions Judge, as the case may be, to hold enquiry and thereupon direct the ministerial officer of the Court to make a coplaint to the competent court in respect of offence that may appear to have been committed. (3) Notwithstanding anything contained in Section 190 of the Code of Cri-

minal Procedure on a complaint made under Sub-section (2) the competent court shall take cognizance of the offence and try the same.

(4) The Chief Judicial Magistrate or the Sessions Judge may obtain the assistance of any public servant or authority as they made may deem ﬁt in holding the enquiry under sub-section (2).

(Para 8.5) 14.11 The Commission recommends that after the existing Proviso contained in Section 160(1) of the Code of Criminal Procedure, 1973, a second proviso be added, on the following lines :--

"Provided that no person shall be required to attend at any place other than his or her dwelling place unless, for the reasons to be recorded in writing by the investigating ofﬁcer it is necessary to do so; and every such person shall be so summoned by an order in writing."

(Para 6. 3) 14.12 The Commission recommends that below section 197(1)of the Code of Criminal Procedure, 1973 an Explanation should be added on the following lines :--

"Explanation.--~For the avoidance of doubts, it is hereby declared that the provisions of this section do not apply to any offence committed by a judge or public servant, being an offence against the human body, committed in respect of a person in his custody, nor to any other offence constituting an abuse of authority."

(Para 10.5) 14.13 In order to provide separately for compensation for custodial offences, the Commission recommends insertion of a new section 357A in the Code of Criminal Procedure, 1973, on the following lines :--

"Section 357A : Compensation in custodial oﬂences (1) Notwithstanding the provisions of Section 357, where the court convicts a public servant of an offence resulting in death or bodily injury, being an offence constituted by an act of such public servant against a person in his custody, the provisions of this section shall apply. ' (2) The Court, when passing judgment in any case to which this secton applies, shall order that the Government in connection with the affairs of which such public servant was employed at the time when such act was committed, shall be liable jointly and severally with such public servant to pay, by way of com-

pensation such amount as may be speciﬁed in the order. ' ' 55 (3) An order for payment of compensation under this section may also be made by an appellate court or by the High Court or Court of Session when exercising its powers of revision.

(4) While rewarding compensation in any subsequent suit relating to the same matter, the civil court shall take into account any sum paid or recovered as compensation under this section :

(5) The amount awarded under this section shall not be less than :

(la) tlﬁupees twenty ﬁve thousand in case of bodily injury, not resulting in ea ;

(b) Rupees one lakh, in case of death;

(6) In ﬁxing the amount of compensation under this section, the court shall, subject to the provisions of sub-section (5), take into account all relevant circumstances, including (but not necessarily limited to) the following :

(a) the type and severity of the injury suffered by the victim;

(b) the mental anguish suffered by the victim;

(c) theexpenditure incurred or likely to be incurred on the treatment and rehabilitation of the victim;

(d) the actual and projected earning capacity of the victim and the impact of its loss on the persons entitled to compensation and other members of of the family;

(e) the extent, if any, to which the victim himself contributed to the injury (f ) the expenses incurred in the prosecution of the case.

(7) In case of death or permanent disablement of the victim, the court may take into account the estimated annual income of the victim as multiplied by the number of years of his estimated span of life.

(8) Pending ﬁnal determination of the proceeding, the court may award, by way of interim relief, such compensation as it may think proper in the circumstances of the case at any stage of the case, even before judgment of conviction is pass-

ed.

(9) The Government may recover any amount paid by it as compensation under this section wholly or partly as it may think proper, form the delinquent public servant."

(Para 12. 7) 14.14 Indian Evidence Act, 1872.

The Commission recommends that the exclusionary provisions contained in Sections 25 and 26 of the Indian Evidence Act, 1872, at present conﬁned to police ofﬁcers should be extended to all pubhc servants the sections by amended as under :

"25. Confession to public servant not _to be proved.--No confession made to a public servant shall be proved as against a person accused of any offence."

In this section, "pubhc servant" means

(a) a public servant not being a police oiﬁcer, who has the power of arresting the person making the confession; and

(b) every police ofﬁcer, whether he has or has not the power of arresting such person.

26. Confession by accused while in custody of public servant not to be proved against him. No confession made by any person while he is in custody of a a public servant, unless it be made in the immediate presence of a Magistrate, shall be proved as against such peson.

ExpIanation.--In this Section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a magistrate exercising the powers of a magis- trate under the Code of Criminal Procedure, 1882 (10 of 1882)."

(Para 11.7) =j 56 14.15 The Commission recommends that for section 27 of the Indian Evidence Act, 18 72 the following section be su ostituted 2-

"27. Discovery of facts at 1/1: instance of the accused. When any relevant fact is deposed to as discovered in consequence of information received from a person accused of any offence, whether or not such person is in the custody of a police officer, the fact so discovered may be proved, but not the information whether it amounts to a confession or not."

(Para ll .6) 14.16 The Commission recommends the insertion of a new section in the Indian Evidence Act, 1872 as under :--

"1l4B. (1) In a presecution of a Police Oﬁicer for an offence constituted by an act alleged to have caused death or bodily injury to a person, if there is evi- dence that the death or injury was caused during a preiod when that person was in the custody of the police, the court may presume that the death or in- jury was caused by the Police Officer having custody of that person during that period.

(2) The Court in deciding whether or not it should draw a presumption under sub-section (1) shall have regard to all the relevant circumstances, including, in particular, (a) the period of custody, (b) any statement made by the victim as to how the injuries were received, being a statement admissible in evidence,

(c) the evidence of any medical practitioner who might have examined the victim, and (d) evidence of any magistrate who might have recorded the victims statement or attempted to record it."

(para 11.3) 14.17 We recommend that organisation of the police should be restructured so as to keep separate the wings dealing with investigation from the wing dealing with law and order. Further the police should be imparted suitable training in modern techniques of investigation.

(para 13.6) Sd/-

(JUSTICE K.N. SINGH) Chairman Sd/- Sd/-

(PROF: D.N. SANDANSHIV) (CH. PRABHAKARA RAO) Member MEMBER-SECRETARY Sd/- Sd/-

(P. M. BAKSHI) (M. MARCUS) MEMBER (PART-TIME) MEMBER (PART-TIME) APPENDIX-I CUSTODIAL CRIMES (A Working Paper) " ' Complaints of police excesses and torture of suspects in police custody and other governmental agencies having power to detain a person for interrogation in con- nection with the investigation of an offence have been made in the past. Of late, such complaints have assumed wide dimensions as the incidents of torture, assault, in- jury and deaths in police custody have increased to alarming proportions. Article 21 of the Constitution guarantees right to life and personal liberty, although it does not, contain any express provision against torture in custody, but it is wide enough to protect the personal liberty of a person as no law or procedure established by law permits torture or assault on a person in custody. Statutory laws, including the Indian Penal Code and Criminal Procedure Code also ensure the personal li- berty of a person against assault and injury. However, in spite of the constitutional and statutory provisions safeguarding the personal liberty and life of a person, growing incidence of torture and death in police custody has been disturbing fac- tor. Almost every day one ﬁnds newspapers full of gory tales of dehumanising tor- ture, assault and death in custody of police and other governmental agencies. Even though no reliable ofﬁcial statistics on custodial crimes is available in the country, Amnesty Internaltional, in its 1993 report indicates that in India 415 people were reported to have died in custody during 1985-1992. A recent press report also reveals that 46 persons died in custody during January--March 1993. Without entering intofthe correctness of these ﬁgures, it is evident that the incidence of tor- ture and death in custody have assumed alarming proportions which are adverse aﬂecting the credibility of the rule of law and the administration of criminal jus- tice. It has priched the conscience of all freedom loving people and ignited criti- cism from law courts, human right activists and the media. The community feels that death in police custody must be viewed seriously for otherwise there will be big strides in the promotion of police raj. It should be curbed with heavy hand and ltlhe punishment should be such which would deter others indulging in such be-

aviour.

Custodial violence and abuse of the police power has been the concern of international community. The General Assembly of the United Nations adopted the Declaration for protection of pesrons from being subjected to torture and other crime of inhuman or degrading treatment or punishment on December 9, 1975. The Declaration prohibited the member States to permit or tolerate even in excep- tional circumstances such as state of war or threat of war, or internal political sta- bility. Article 5 required comprehensive training of law enforcement ofﬁcers against torture. Article 7 required system of review of the interrogation, methods and prac- tices as well as custodial arrangements. Article 7 obligates the States to ensure that the acts of torture are made offences under National Criminal Law. The Decla- ration also provides that victim shall be afforded redress and compensation. The Declaration which is part of the binding international law has not yet been im- plemented so far in our country. There also exists a code of conduct for law enforce- ment oﬂicials adopted by the General Assembly on December 17, 1979, under which substantive norms are prescribed for "effective maintenance of ethical standards"

by the olﬁcials. Article 5 prohibits law enforcement oiﬁcials from inﬂicting, insti- gating or tolerating any act of torture. This was followed by another Declaration on December 10, 1984, by a Convention which provides for more elaborate regime of 33 articles. The General Assembly adopted another Declaration known as "Carcus Declaration on Basic Principles of Justice for the Victims of Crime and Abuse of Power" on November 29, 1985. This Declaration also obligates the State to deﬁne laws "prohibiting the criminal abuse of power" and also for prohibition of re- course to third degree methods. India being a party to these Declarations and Con- ventions, is under an obligation to take effective steps, to prohibit abuse of power, including torture and custodial violence and providing for restitution and com- pensation to the victims and their kith and kin in accordance with the constitutional mandate under Article 51.

57 58

Invariably, the victims of torture and death in custody are poor persons who do not have adequate resources or ﬁnances to protect their life and liberty. In many cases the sole bread earner of a poor family is the victim of custodial death leaving the entire family in a State of penury and starvation. The Law Commission has, therefore, considered it necessary to take up this matter for consideration suo moto so that adequate steps are taken by amending laws to prevent recurrence of such in- cidents and also to provide for pinishment of the guilty persons and also for grant of pecuniary relief to the victims and their dependents.

Before we discuss the various issues arising in connection with the problem of custodial torture and death, it is necessary to brieﬂy have a look at the constitutional provision safeguarding the right to life and guarantee against torture and assault in custody. Article 21 of the Constitution provides that no person shall be deprived of life and personal liberty except according to procedure established by law. The expression "life or personal liberty" includes the right to live with human dignity which would include guarantee against torture and assault by the State. Article

22 guarantees protection against arrest and detention in certain cases. It declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and he shall not be denied the right to consult and deﬁned himself by a legal practitioner of his choice. Clause (2) of the Article directs that the person arrested and detained in custody-shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the Magistrate A person accused of an oﬂ'ence shall not be compelled to be witness against himself under Article 20(3) of the Constitution. The object of these constitutional pro- visions is to safeguard the life and liberty of an individual even after his arrest in connection with commission of an offence. Even though Articles 21 and 22 do not contain any express provision against torture, assault or injury inflicted on an are rested person while in custody, the Supreme Court held that Article 21 guarantee- protection against torture and assault by the State. while a person is in custody} Consistent with the constitutional guarantee, the statutory provisions are con- tained in the Criminal Procedure Code and the Indian, Penal Code for the protec- tion of a person arrested in connection with the commission of an offence. Chapter V of the Criminal Procedure Code, 1973 provides for arrest of a person and the safeguards which are required to be taken by the police to protect the interest of the arrested person. Section 41 confers powers on any police ofﬁcer to arrest a person under the circumstances speciﬁed therein without any order or a warrant of arrest from a Magistrate. This provision confers a very wide power on the police oﬂicer to interfere with the freedom and liberty of a person. Section 46 provides the method and manner of arrest. Under this Section, no formality is necessary as it may be made by action or word of mouth. While arresting a person the police is not permit- ted to use more restraint than is necessary to prevent the escape of a person." Section. 50 enjoins every police officer arresting any person without warrant, to communicate to him the full particulars of the offence for which he is arrested and ounds for such arrest. The police officer is further required to inform the person arrested that he is entitled to be released on bail and that he may arrange for sure- tieson his behalf in the event of his arrest for a non-bailable offence. It is persmiss- ible to the police oﬂicer to get the arrested person emdialally examined; similarly arrested person has also a right to insist for his medical examination (Section 53 and 54). Section 56 contains a mandatory provision requiring the police ofﬁcer making arrest without warrant to produce the arrested person before a Magistrate without unnecessary delay. Section 57 provides that no person shall be detained in custody by a plilce officer without warrant for a longer period than under all the cir- cumstances of the case, is reasonable exceeding 24 hours, excluding the time neces- sary for travel from the place of arrest to the Mag1'strate's court. If, however, the police want to detain a person for a longer period for the purpose of interrogation and investigation, they have to obtain the orders of the Magistrate and follow the procedure as prescribed under Section 167. The arrest of a person without a war- rant. is to be reported to the District Magistrate or the Sub-Divisinoal Magistrate by the oﬂicer ineharge of the police station making the. arrest. These provisions afford procedural safeguard to a person arrested by the police. Whenever a person dies in custody of the police, Section 176 requireds the Magistrate to hold enquiry into

1. See Sum'! Batra v. Delhi Administration, A. I. R. 1978 S. C. 1675, Bachan_Singh v. State of Punjab.

A. I. R. 1980 Sunil Batra v. Delhi Administration, A. I. R. 1980 S.C. 1579.

'. Section 49.

535

the causes of death. The Magistrate is empowered to record evirlence and to get the dead body examined to discover the cause of' death. The obiect of' this Section is to hold enquiry into a suspicious death. Siich an enquiry and inquest report does not constitute substantive evidence as held '*7 the courts?' Punitive provisions are also contained in the Indian Penal Corie which seek to prevent violation of right to life. Section 7.7%') provides for punishment to an ofﬁcer or authority who detains or keeps a person in conﬁrnemcnt with the corrupt or a malilcious motive, Section 330 and 331 pro/ide for punishment of those who in- ﬂict injury or grievious hurt on a person to orrtort confession or information in re- gard to commission of an ottence. .l7.!u.sti-ations (a) and (hi to Section 330 make a police ofﬁcer guilty of torturing 2. person in order to induce him to confess the commission of a crime or to induce l*iin to point out places where stolen property. is deposited. Section 330 therefore directly rrakes the torture punishtble under the Indian Penal Code. These statutory prov-.'i_e-ions seek to safcrzuord the interest of an arrested person, but these are iii:-ieciuate. Mrsreovcr. the police do not follow these provisions instead they evade the rigours of procedural law by manipulating records. As noted earlier, a person arrested without warrant nmst be presented before the Magistrate without unr.ccessary delay and he should also be informed of the offence for which he may have heen appreliended or the ,.r'-1'our.£l for his arrest- and he should be enlarged on bail if arrested for ron-cogrizable offence. The police is further required to make entry of his arrest in several docurncnts under the Police Act and Police Manual. inforrnation to the District Magistrate and the Sub- Divisional Magistrate about the date and time of arrest. In order to avoid these rigours of law, the police makes inf'o:":nal ?.t'i'f'Sl without makin :1 any entry into the records. Instances are not lacking where the pclice has arrested a person without warrant in connection with the iiivestigation of an oﬁence and the arrested person is subjected to torture to extract information from him for the purpose of further investigations or for recovery of weapons or goods and also for extracting confes- sion in violation of the statutory law. The torture and the injury caused on the body of the prisoner sometiernes resu'.t_s into his death. The Cl?f'.'{ll in custody is not generally shown in records and ever: effort is nsade by the police to dispose of the body or to make out a case that the arrerted person died after he was released from custody. Any complaint against such torture or death is generally not given any attention by the police ofﬁeer on acccu"t of brotherhood. No ﬁrstinformation report at the instance of the victim or his kith and kin is szenerally entertained and even the higher police oﬂicers prefer to turn. a blind eye to such complaints. But even ifa formal prosecution is launched victi"o. or his kith and kin. no direct evidence is available to substantiate the charge of torture or causing hurt resulting into death as the police lock up where gexierally 'torture or injury is Caused on the arres- ted person is away from the public gaze. where the sole witnesses are either police- men or co-prisoners who are highly reluctant to appear as prosecution witneszes ﬁrstly because of police brotherhood and secondly due to fear of retaliation by the superior oﬂicers of the police.

As the law stands today, if a complaint is made against torture death or in- jury, in police custody, no evidence is available to substantiate the charge in a court of law and the complainant or the prosecution is unable to produce evidence to prove the charge beyond 'all reasonable doubt'. In such cases it is difiicult rather impossible to secure the evidence against the policemen responsible for resorting to third degree methods since they are incharge of police station record which they do not ﬁnd diﬂicult to manipulate. Consequently. prosecution against the delin- quent oﬁicers generally results in acquittal. This dilﬁculty was considered by the Supreme Court also in a series of cases and it observed that the situation required amendment of law relating to burden of proof in the law of evidence.

The law relating to burden of proof is contained in Sections l0l---1l4 of the Indian Evidence Act. The general princip':e as deductible from these Sections is that the prosecution is under a mandatory :l'1ty to prove the essential elements of the offence charged against an accused. perswn beyond all reasonable doubt. On the suggestions of the Supreme Court in Rm:-2sagai' Yadav case', the Law Com- mission in its 113th Report reconnz tied the insertion of a new Section as Sec- tion 114B in'the Indian Evidence Act. The C;)'Tl."nlS§lO'l recotnrnended that in a prosecution of a police officer for an alleged offences of hziying caused bodily in-

Jury to :1 person, if there was evidence that the injury was caused during the period

-._ it 955) ISCR 1090.

-. A . 1. R. 1985 sc 445.

95-M/Jl28MofL.l&CA--9 60 when the person was in 'the custody of the police, the Court may presume that the;

injury was caused by the police ofieer having the custody of that person during that period.

The Commission further recommended that the court, while considering the question of presumption, should have regard to all relevant circumstances including the period of custody, statement made by the victim, lT1'3CllC3.l evidence and the evidence which the Magistrate may have recorded. The Supreme Court again considered this question in a recent case' and observed that where the admitted facts of the case indicate that victim was taken in custody and later, on the next day if he was found dead near the police post, the burden was clearly on the State to explain how the victim sustained those injuries whicli caused his death. The Court again amphasised the need for change of the rule of burden of proof in such cases. It is a matter of regret that inspite of the Law Commission's recommendations ans. the Supreme Court's observations in several cases the requisite amendment in the law of Evidence has not been made. In View of the sharp rise in police atrocities and custodial violence, tortures and death, it is of utmost imoortance to amend Section 114 of the Indian Evidence Act as suggested earlier. In this connection it is worth mentioning that the Parliament amended the Evidence Act for raising presumption in the case of rape in custody and dowry death with a view to meet the growing incidence of sexual exploitation during custody. The Parliament by amending the Act inserted Sections 114A and 1MB of the Indian Evidence Act 1873 empowering the Court to draw presumption against the accused in prosecution for rape and dowry deaths. This legislative step was taken to meet the technical plea of lack of evidence in rape and dowry cases. There appears to be no reason as to why the same principle should not be extended in the case of custodial crimes.

There is need for making further provisions in the laws to eliminate the pos- siblility of torture and beating in custody during interrogation. Police is, no doubt, under a legal duty to arrest a criminal and to interrogate him during the investigation of the offence, the law does not permit use of third degree methods or torture of accused in custody but the police generally resorts to these methods with a view to solve the crime. It is a legitimate right of the police to arrest a suspect on receiving some credible information, or material, but the arrest must be in accordance with the law and the interrogation should not be accompanied with torture and use of third degree methods. The interrogation and investigation should be in true sense and purposeful to make the investigation effective. By torturing a person and using third degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. If the custodians of law themselves indulge in committing crime. then no member of the society would be safe and secure. In this situation, it would be worthwhile to amend the law to eliminate or at any rate minimise, the chances of torture or injury or death in custody.

When a person is arrested without warrant for a cognizable offence it should be imperative for the police oliicer to obtain from the accused the name of any relative or friend whom he would like to be informed about the arrest and the po- lice should get in touch with such relative or friend and inform him about the at- rest". When the accused is produced before the magistrate it should be mandatory for the Magistrate to enquire from the arrested person whether he has any complaint of torture or mal-treatment in custody and he should further be informed that he has a right under Section 54 of the Code of Criminal Procedure to be medically examined.' Very often the arrested person is not aware of this right and on account of his ignorance he is unable to exercise his right before the Magistrate even though he may have been tortured or mal-treated by the police in the locl<--up. It is, there- fore, necessary that the law should be amended and a mandatory duty should be amended and a mandatory duty should be cast on the Magistrate to enquire from the arrested person about the torture and remind him of his right of medical exami- nation under Section 54 of the Code.

Torture or beating of an arrested person in the lock--up is generally carried on behind the closed doors and no member of the public is permitted to be there and instances are not wanting where even the family members of the arrested persons are not allowed to meet them. In developed countries it is well recognised right of '. 1993 (2) SCC 346.

'. Sheila Bars: v. State of Malmraslztrrz, AIR 1983 SC 378 para 4. '. Shula Barse Ibid.

n.»~-.ri¢ . .

bl an arrested person to inisist for the presence of his counsel during the course of in- terrogation while in custody. The presence of counsel would deter the police from using third degree methods during interrogation. The Cr. P. C. does not confer ex- pressly any such right on the accused but the Apex Court while interpreting the scope of Article 2} and 22 has held that the accused is entitled to have his counsel during interrogation}? The law declared by the Supreme Court is the law of the land under Article 141 of the Constitution. Since the decisions of the Supreme Court are not brought to the notice of each and every police orlicer, it would be proper and appropriate to amend the law in this respect. Amendment of Sections 41, 50 and S6 of the Criminal Procedure Code may be necessary to secure the aforesaid objectives.

Non-Recording of FIR A ﬁrst information report against a police otﬁcer is generally not recorded. Ordinarily, the police oﬂicer responsible for recording of HR relating to commis- sion of a crime would turn away the complainant ii" the complaint is against the police.

Therefore, in cases of custodial torture, violence and injury, even if the victim or the ldth and kin of the victim take steps to lodge FIR, they are generally un- successful in their attempt. On refusal on the part of the oiﬁcer incharge of police station to record the information, the complainant is entitled to approach the higher police officers namely the Superintendent of Police, Deputy Inspector General of Police and even the Inspector General of Police. But generally the higher authorities of the police department do not take these complaints seriously on account of their soft corner for their subordinate oﬁicers. It is true that in some cases the Superintendent of Police or higher officers have taken steps to record the FIR and investigate the case but, by and large, FIR is not recorded against the police at the instance of the victim or his kith and kin. In a number of cases the aggrieved party has approached the court and on its direction FIR has been recorded and case has been investigated and the prosecution has been launched. But, it is not possible for every aggrieved person to obtain the circuitous relief. In the circumstances, it is necessary to meet the situation by amending the law. If the police refuses to record the FIR, the aggrieved person should have the right to file a petition before the Chief Judicial Magistrate in the case of injury or torture and the District Sessions Judge in the case of death in custody and the petition so made should be treated as the FIR for the purpose of investigation and enquiry under the Cr. P.C. Investigation of Complaint in Custodial Olfences As the law stands today, a complaint against the police in respect of torture, in- jury or death in custody is also required to be investigated by the police but such enquiry cannot be eifective and free from bias.9 In order to meet the situation, in some cases, investigation against the police torture have been entrusted to the Central Bureau of Investigation but, under the existing law, CBI cannot take up the investigation of all cases of custodial crimes since the State Governments consent to such investigation may not be available in many cases. The ideal course would be to have an independent agency for holding investigation and enquiry into such complaints, and this may be entrusted to the proposed Human Rights Commis- sion. But, in the absence of such commission, it would be necessray to have an independent agency to deal with such matters in an objective and fair manner. One method may be to authorise the courts to hold enquiry into such complaints. Under Section 176 of the Code, enquiry in case of death of an arrested person while in custody is made by a Magistrate empowered to hold such inquest. The object of this enquiry is to Verify the cause of death this enquiry is judicial but the Magistrate does not function as a court the inquest report or statement contained in the enquiry report do not constitute substantive evidence." The Commission is, however, of the opinion that in case of complaint of torture or injury caused in police custody, the Chief Judicial Magistrate who is head of the Magistracy in the District should have the power to hold enquiry into the complaint and for that purpose he may obtain the assistance of the police oﬂicers of his own choice. In cases of custodial death, the Sessions Judge should be invested with au- thority to enquire into the matter. If on enquiry by the Sessions Judge/Chief Judicial '. Nt-zIndim' Satpati V. R. L. Tiizirntisti, 1968 CRLJ 968 para 58, 59 per Krishnaswamyrﬂiyyar '. State v. P. S. Yadav, AIR 1985 SC 146.

". (I955) 1 SCR 1083.

Magistrate/Metropolitan Mag' .«.:e, a ;"-rima facie case is made out, the Sessions Judge or the Chief Judicial l'...ig":r;i1e ol'.Oi.llCl be competent to direct for the re- gistration of cases against the deli queii: orlicers. This method may ensure aware- ness and objectivity in liclriing tn: eiic;;i.?ry into the complaints against the police.

Under the law no public S!22'V8l]t, iscluding police officers, can be prosecuted for an offence without the SF.IlCllCv'il of the State under Section 197 Ct. PC. No doubt, there are a iiumber of decisions of the court that torture, injury or causing death in custody is not within ti = " 'go of oificial duties of a police officer and Section 197 is not attrac ed in. =. but invariably a technical plea of absence of sanction under Section l9/ L 1) sised by the members of the police force facing the prosecution. T21: is 3 '3', in regard to necessity of sanction causes lot of delay in the trial or' c ' lt '.\'e'ild. therefore, be necessary to amend Sec- tion 197 of the Cr. PC. to o _.i'.e the necessity of sanction of Government for prosecution of police ofiicer £11.'-4.1' ' who: .1 a prime facie case is made out on enquiry by the Sessions Judge,-"Cliief Ju l Magistrate. In order to achieve this object, a proviso would be necessary to be ii:s-;-rted under Sub-section (l) of Section 197 in the following inaniicr :--

" VC';' "Nothing contained in this cction shall apply in case of custodial offence where a court on an eiiqui is pri;n.1 faeie of the opinion that the accused pub- lic servant comniittcd an ozfeiice of penal nature within his custody."

Compensation With the advance of civ"I_ "ion, iiidividual's right to restitution and compen- sation against the abusc of pe .-'er by public servants has been well recognised throughout the civilised nations. In in is, prior to independence the liability of the Government for the tortuous act of public servants was limited and the person affected could enforce his iiglii in tort by ﬁling a civil suit. But no restitution or compensation was available to» :2 ; .o:i if the damage or injury was caused in exer- cise of sovereign function. Even ;=.tcr indepeiiderice the distinction between sovereign and non-sovereign fuzictions of iii: Ss.-3;e was znaintained and the State's claim for immunity was upheld by the ]':~1'Cl"_I'.B Court." But without abandoning the distinction formally, the Siiprc ;...- Court has recently taken a more realistic and en- larged view of the fiizictions teri ".1 "ricn--sovereign"'. Further, the Supreme Court oflndia in a number of path hi ' ig pr Jnouncernents has extended the fundamental right of life and personal liberty to. tlasliioiaed compensatory and rehabilitative reliefs to the victims of C1.EE'.L dial crir. cs. Despite the distinction betvseen exercise of sovereigiiand non 'ei'gein functions, the Supreme Court has awarded compensation to the viciiiissa 'r l._Lt 1 and kin for the injury caused to the victim by the police and other detaiiifiigg 3.Ul.l1é)Tl[lCS of the State." Such damages have been awarded even for the inju-;i.;s arisi ig out of police ﬁring killing innocent citi- zens in crowd or riot. Tlxotigii tlie Suprcine Court has awarded compensation to the affected persons but no uginoiun principles have been laid down. In the ab- sence of specific iegisiatiogi, Li"-.31': is mieertaiinty and the courts have adopted their own standards in awrirdiiig the co;npcii.;ation or in determining its quantum. The question that arises for consi-:le:atioii is whether legislative provision should be made for the award of cosnpciisgitioii and, if so, what should be the principles for determining the amount or' coz. s;ztio.i. A further question that arises for consi- deration is whether in Case of -1-.::i!.li of a person in custody of a public servant com- pensation upto a speciﬁed limit irre"pccti\e0f the pro of of fault skculd l:e provided for. It is felt that such a ;:-rovisioii wouid bejustiﬁable in the interest of social jus- tice and the rule of law. A115'-Ii,Ci' interesting question that arises for consideration is whether the victim of torture and injury and his kith and kin in the case of his death should be awarded one ti .l'lC compensation or itshould be continuous to provide means of sustenance and ii\'c':ii:ood to the relatives of the victims. Under the gene- ral law prevailing in our CO1Il"l[L"_,". any award of compensation or ex-gratia pay- ment by the criminal court or t: c Supreme Court and the High Court under the wnt jurisdiction or the ex-gratin payment by the executive is subject to the right of the >-

". Kasturi Lat' V'. Smle of U. F'., AIR 1965 SC i039.

". State of Rcijm~ri:m v. Vﬂivamtri', AIR i962 SC 933 ; Sir Rasara Part'! V. State ofMysore, AIR 1977 SC I749: J\'f.';"» .' Hr./irn \ . Strife 0 Orisru, (1993) 2 SCC 746: State ofGujarat V. Memon .Mol'itznmie.i' Hii 1;' -_.-iii, -\l}i.l96 SC ISSS; Rudol Sliuli v. State nfBihar, AIR AIR 1983 SC 1036; 5c";'isi'.f:;-1 M. Mi):i:'."ay v. Union of India (1984) 1 SCC 339; Bhim Smelt v. State of] & K, i989 Supp. SC 564; Bhim SiIi_,vh v. State of J & K, (1985) 4 SCC 677 Sahel! V. Comrriiirsfiirier of Police (1990) 1 SCC 422.

victim and his kith and kin to obtain decree for damages in tort before the civil court. If the criminal court is vested with power to award compensation to the victim of custodioal offences or his kith and kin why should they have another innings of litigation before civil court in tort. According to one view the amount awarded by the criminal court and the Civil Court and High Court under writ jurisdiction is tentative and the ﬁnal amount of compensation is determined on consideration of the basis of the scrutiny of evidence and circumstances of the casein detail by the civil court. This question requires further consideration.

The Supreme Court13 has granted compensation to provide support to the dependants of the deceased. An analysis of the decisions of the Supreme Court shows that the Court has awarded Rs. 75,000," Rs. l,50,000 15 and Rs. 2,00,0O0/-1° as interim measure" to the legal heirs of the victims who died in police custody. This indicates that the amount of compensation has not been uniform and no principles have been laid down or followed. The award of compensation has varied from case to case probably on the facts of each."

If the law is required to lay down principles, the question arises what formula or principles should be prescribed for determining the quantum of compensation. The Indian courts have followed two kinds of formula to determine the amount of compensation payable to the dependants of the deceased in case of wrongful death i.e., the interest theory and multiplier theory. In the case of former the proposition contemplates that only such amount should be payable to the claimants which would ensure the accrual of interest equal to the annual depe-ndancy if the same were invested on a long term basis in the bank. Under the multiplier theory damages are computed on the basic annual ﬁgure of dependancy, by applying a multiplier which seeks to take care of uncertainity of vicissitudes of life. While determining the amount the damages must represent solatium for the mental pain, distress, indignity, loss of liberty and deaths' The principles laid down by the English court"° for determining the compensation in the case of womgful death have been followed by the Supreme Couit of India." These principles are as follows :

"The deceased man's expectation of _life has to be estimated keeping in viewhis age, his bodily health and the possibility of prematuie determination of his life by subsequent accident ;

(2) The amount required for the future 'provision of his wife should be estima-

ted having regard to the amount the deceased used to spend on her during his life time ;

(3) This estimated annual sum should be multiplied by the number of years of the man's estimated span of life;

(4) The said amount must be discounted so_ as to arrive at the correct e_qui- valent in the form of lumpsum payable on his death, after making deductions for the acceleration of her interest in the estates; and (5) Deductions should also be made for the possibility of the wife dying earlier if the husband had full span of this life and also for the possibility that in case the widow remarriages, that may result in improvement of her ﬁnancial position"

In this connection it would be worthwhile to refer to some of the proposals made in respect of relief to be provided to the victims of custodial crimes or their kith and kin placed before the Chief Minister's Conference on Human Rights held on 14th September, 1992. One of the proposals made contemplated that in case of 1'. Rudai S/rah v. State of Bihar (1983) 4 SCC 141; (1983) 3 SCR 508; Sebastian M. Hongray v. Union of India (1984) Al SCC 339(1) ;Bhi/71 Siugh v. State of J & K, 1984 Supp. SCC 504; Bhid .S'i.>1gl1 v. State of] & K (1985) 4 SCC 677 ; Saheli : 4 Women's Resource Centre v. Commissioner of Police, Delhi Police Headquarters (1990) 1 SCC 422.

1'. PeopIe's Union of Democratic Rights v. Police Commissioner (1984) 4 SCC 730.

15. Nilabaii Bahera v. State of Orissa, (993) ZSCC 746.

1'. Snwaider Singli Grover v. State of West Bengal (i993) 1 Criminal Law Reporter 163.

17. Rudal Shah V. State of Bihar (l983)4SCC 141.

1'. See supra notes 13 to 16.

1'. Sahel! v. Commissioner ofPoliee 1961 SC 442.

9". (1951) AC 601.

". AIR 1962 SC 1.

I 64 death the amount of compensation should be determined by the criminal court taking into account all relevant considerations and the court may further allow pay- ment of interim relief. The extent of such interim relief may not be less than Rs. 10,000 and may extend upto Rs. 25,000 in case of death and in the case of other injury it may not exceed Rs. 10,000. As regards the ﬁnal relief payable in the case of death, the proposal contemplated maximum amount of Rs. 5,00,00D and Rs. 50,000 in the _ case of injury.

Section 357 of Cr. P.C. confers power on court to direct for payment of compen- sation out of the ﬁne awarded against the accused at the time of passing judgment The amount of compensation is contemplated to meet the expenses incurred in prose- cution and compensation for loss of injury casued by the oﬁ"ence,.if the compensa-

. tion is recoverable in a civil court. Under this provision, compensation can be ordered to be paid only if the accused is convicted and sentenced and fine is imposed, but the . payment of compensation is subject to appeal. The Supreme Court has interpreted this Section narrowly. The court held that the court has to consider in the first instance whether the sentence or ﬁne is at all called for particularly when the offender is sen-

. tenced to death or life imprisonment. Even if the ﬁne is to be awarded it should not be excessive." The provisions of Section 357 are not adequate to provide for restitution or compensation to the persons entitled to compensation.

Apart from the police there are several other governmental authorities like Directorate of Revenue Intelligence, Directorate of Enforcement, Coastal Guard Central Reserve Police Force (CRPF), Border Security Farce (3313), the Central Industrial Security Force (CISF), the State Armed Police, Intelligence Agencies like the Intelligence Bureau, R. A. W., Central Bureau of Investigation (CBI), CID Traﬂic Police, Mounted Police and ITBP, which have power to detain a person and to interrogate him in connection with the investigation of economic offences under Essential Commodities Act, Excise and Customs Act, Foreign Exchange Regulations Act etc. There are instances of torture and death in custody of authorities other than the police authorities." it would be necessary to amend the law to protect the interest of arrested persons in such cases also. This may require amendment of the relevant provisions of law.

There is yet another view point which needs consideration. The police in India have to perform a difficult and delicate task, particularly in View of the deteriorating law and order situation, communal riots, politcal turmoil, students unrest, terrorist activities, radical politicism like extremists and among others the increasing number of armed gangs and criminals. Many hard core criminals like extremists, the terrorists, drug peddlers, smuggles who have organised gangs, have taken strong roots in the society. One can visualise that with the more and more liberalisaion and enforcement of fundamental rights, it may lead to more difficulties in detection of crimes by such categories of hardened criminals. It is felt in certain quarters that if we provide them with more measure of safety and interests pertainig to their fundamental rights and human rights vis-a-vis torture of their person, such criminals will go scot-free without exposing any element or iota of criminality. To deal with such a situation a balance approach is needed to meet the ends of justice. This is all the more so, in view of the expectation of the society that police must deal with the criminals in an eﬂicient and effective manner.

I ssues for Consideration In view of the above discussion the following issues would arise for consideration:

1. Should the police continue to have unrestricted power to arrest any person at any time and at any place without any order or permission from the Magistrate or a ny other court ?

2. Should the law be amended to confer right on the suspect who is detained for interrogation to insist for the presence of his counsel at the time of interrogation ?

If the amendment is made, will it not delay and interfere with the investigation of crimes ?

'3. 1972 SCC 634 para l2.

33. S¢(z§g';1der Singh Grover v. State of West Bengal (993) 1 Criminal Law Reporter 163 65

3. Should the law provide that on the arrest of a person it should be mandatory for the police offcer or any public servant holding the custody of a person to get him medically examined before commencing the interrogation ?

4. Whether Section N4 of the Indian Evidence Act should be amended to provide for raising of a presumption against the police oﬁicer or the public servant in case of any injury caused to a person in custody or resulting into death? Should the pre- sumption be rebuttable?

5. Should the law provide for an indepedent agency forhoding enquiry into the complaint of torture of a person in police custody or death, if so, what should be the agency? Will it not ser'. 2 the purpose if the enquiry is held by the Chief Judicial Magistrate or Metropolitan Magistrate in case of tcrture and injury and by the Sessions Judge of the District in case of death? Should they have the liberty to obtain the assistance of the Criminal Investigation Department or any police officer of their choice?

6. Should a Criminal case be registered against the delinquent police officer or the public servant, if a prima facie case of torture, injury, or death is found without any further investigation without obtaining sanction of the Government for the prosecution of such delinquent public servants u/s 197 Cr. P.C.?

7. Should there be provision for the award of compensation by the Government on no fault basis in the case of death or injury caused to a person ? If so, what would be the appropriate amount to be ﬁxed. Should the Court trying the aforesaid delinquent oﬂicer have the power to award ﬁnal compensation to the victim or the dependants of the victim, notwithstanding their right to obtain damages in tort before Civil Court ?

8. Whether the law should provide for interim compensation in a case where as a result of the enquiry, prima facie case of torture, injury or death on account of injury caused in custody is made out ?

9. Should the law confer power on the Government to recover the amount of compensation from the delinquent oﬂicer?

10. Will the aforesaid steps not affect the functioning and morale of the police adversely in investigating cases and further whether it~wi1l result into non-investiga- tion of crimes which will affect public order ? What measures should be taken to avoid these situations ?

The aforesaid issues arise out of our concern for the protection of the poor people who are generally subjected to torture in custody. The Law Commission has prepared this working paper indicating the various aspects of the problem which is neigther exhaustive nor ﬁnal; instead it is tentative. The Commission will be obliged if the considered opinion of the Jurists, Judges, Lawyers, Law-teachers and non- Governmental organisations, Human Rights Activities are available to it as the same will be helpful in formulating the Commissions recommendations to the Government for amending the laws. Any suggestion for amendment of law or enactment of a new law or formulating of any scheme in this respct which would advance public interest would be welcome.

APPENDIX-II COMMENTS RECEIVED ON THE WORKING PAPER Introductory As already stated, the Law Commission circulated a Working Paper on 'Custodial Crimes' for eliciting opinion from various quarters. In the working paper, the Law Commission formulated ten issues on various aspects of the problems relating to custodial crimes.

The Commission also invited further suggestions for amendment of the law or enactment of a new law or formulating a new scheme.

The Working Paper was sent to nine Academacians, ﬁfty two Judges, ﬁfty six Advocates, seventy four Police Oiﬁcers of the rank of Director General of Police/ Commissioner of Police of all States; Commandant General of Home Guards of all States; Director General Industrial Security Force; Director, Central Bureau of Investigation; Director, Intelligence Bureau; Director, Enforcement; Director Gen- eral, Indo-Tibetan Border Police; and Director General, Bureau of Police Research & Development, and 32 Home Secretaries of all States & Union Territories. Out of these, responses were received from two academicians, ﬁve judges, seven advocates, twelve police ofﬁcers and nine State Governments (including UnionTerritories).

The working paper was also sent to the human rights activities and voluntary agencies like People's Union for Democratic Rights, People's Union for Civil Liberties; but it is regretted that the Commission received no response from these agencies on the important subject of 'custodial crimes', which is vitally connected with the protection of human rights.

1. Power of Police to Arrest.

ISSUE NO. 1

Should the police continue to have unrestricted power to arrest' any person at any time and at any place without any order or permission from the Magistrate or any other court.

Views of Academicians Both of academicians are of the view that police should not continue to have unrestricted power to arrest. In their view proper accountability has to be built up against power of arrest exercised by the police.

Views of Hon'ble Judges The Hon'ble Ex-Chief Justice of India answered Issue No. l in aﬂirrnative. So do all the four of the High Courts. They regard the existing provisions to be satisfactory. According to the Ex-Chief Justice of India, the Constitution has im- posed an obligation to convert the detention into judicial custody within 24 hours which is more than suﬂicient.

Views of Advocates Out of seven, ﬁve have supported the power of police to arrest and one has deviated from the question and not replied the issue directly. The Calcutta Bar Association has responded in negative and has suggested to restrict the power of police regarding arrest. They feel that the term "cognizable" should be redeﬁned so that the police may arrest without warrant only in appropriate cases. The law should also enjoin the police ofﬁcer to record reason for arrest and as such he suggested that Section 41 of Cr. P. C. be deleted.

66 67

Views of Police Oﬂicers Out of twleve, eleven ollicers have suggested that there is no need for any amend- ment in existing laws regarding arrest and one officer fro:n Mampur (Imphal) has agreed and wanted the law be amended. They feel that the powers of arrest are not un- restricted. One oﬁicer says that the power of arrest should be restricted except in the case of hard core extremists, terrorists, drug paddlers and smugglers. Others say that any condition should not be placed in regard to their power of arrest. On the other hand, A.l.G. ol' Arunachnl Pmdesl1,Itanagar, agrees with the proposal of Law Commission.

Views of State Governments Six State Governments. namely. (iO\'Cl'ni':':€ﬂl'. of (ion, West Bengal, Karnataka. Rajasthan and Bihar supported the powers of police to arrest as necessary to maintain law and order. They are of the view that ii' the police ofﬁcer is required to take the permission for arrest from the Court the suspect may ﬂee away. The Government of Goa feels that in ca::e police have to obtain persmission from the Magistrate or any other Court it will go against Section 41 of Cr. PC. and even a murderer will escape from the scene of olfencc. lt win amount to permit members of unlawful assembly to escape after indulging into violence. If this power is taken away there will be serious adverse cﬂect on law and order position. The Government of Andhra Pradesh is of the view that as the punitive provision contained in the Indian Penal Code under Sections 220. 330, 331 are inadequate and almost ineffective, there is every possibility of misusing such powers. They suggested that power of arrest under Section 41 Cr. P. C. may be curtailed and it should be limited to Terrorists, hard--core criminals but not to others. There should be no routine arrests. The State Governments,-' Union Territories of Pondicherry, Mizoram, also support this \iew.

2. Presence of Counsel at the time of interrogation.

[SS UE N0. 2 Whether law should be amended to confer right on the suspect who is detained for interrogation to insist for the presence of his counsel at the time of interroga- tion. If the amendment is made, will it not delay and interfere with the investiga- tion of crime ?

Views of Academicians Both the academicians have supported the issue raised by Law Commission and suggested amendment in the present laws. One of them has apprehension about its success, as he feels it is not feasible. He questions who is poor man's cou- nsel ? The other has suggested the presence of third party like family friends or legal consel will contribute to accountability of police powers. He has further suggested that senior police olicers should be selected to make surprise visit of police station, to ensure that i;legal arrests are not made and third degree method is not used. Both of them agreed that if a person is arrested in a village then 'Gram Pradhan' or 'Sarpanch' of the village should also be informed and the whereab- outs of' the arrested person should also be given to the family and friends of the arrested person. They have also suggested that there should be prescribed a "Cust- ody-Menw" wherein complete information regarding arrested person and prop- erty taken by the police should. be entered and details of the police oﬂicers making arrest should also be ﬁlled. This view is now supported by the recent judgement of the Supreme Court in the case of Juginder Singh V. State' of Uttar Prat/cs/1, (1994) 3 JT (SC) 423.

Views of Hon. Judges Two of the High Courts, namely, Jammu & l<.ashmir and (jangtok have responded in negative. According to them the proposed amendment will serve no purpose and would delay investigation. They suggested that interrogation should be made on scientific lines by using an electronics and psychologistic pattern. According to them the presence of friend and relative will be sulﬁcient and there is no need of presence of counsel. The Andhra Pradesh High Court has also re- sponded to the issue in negative. It is of the View that there is no need to chatige the existing procedure. Accorting to it, the presence of counsel will delay im es- tigation. On the other hzind. the ex-chief Justice of lndia has said that the p 'es- ence of an advocate would be appropriate; only in exceptional cases the perrr.».ss-- ion shotﬂd be taken from the Court for investigation in privacy. Thus out of tour 95'M/Jl28MofLJ&CA----l0 68 judicial opinions three are against the proposal to amend the existing law to allow the presence of a counsel during interrogation of the arrested person and Justice R.N. Mishra is in favour of amendment to provide the assistance of advocate during the investigation in exceptional cases.

Views of Advocates Out of seven, four have categorically supported the proposal of Law Comm- ission to provide the legal assistance during investigation by presence of the coun- sel. They feel that the presence of a counsel is desirable and would not delay or in any manner interfere with the investigation of crime. Accroding to them it is also in the tune of Article 22(1) and is supported by the ruling of the apex court in the Nandini Satpati v. P.L. Dani, (1978 Cr. LJ 908). They plead that appropri- ate amendment be made in Sections 4], 50 and 56 of Cr. P.C. Views of Police Oﬂicers Out of twelve, only one ollieer from Manipur. lmphal has supported the proposal by suggesting amendment to provide a Counsel during investigation. The other from Itanagar has suggested that help of a lawyer can be provided at a later stage of investigation. The rest of the senoir police oﬂiccrs t'romDelhi, Bombay and U.P. do not consider it necessary to amend law for the presence of counsel at the time of interrogation because presence of counsel at the time of interrogat- ion would adversely affect the proceeding and will cause delay and will also be an interference with the investigation of crime. A senior IPS ollieer from Sikkim feels that if this proposal is accepted investigation will be rendered impossible. It would interfere in investigation of cases and put terrible ﬁnancial pressure up on the dctenu. Another senior officer (former Commissioner of Delhi Police) is of the view that counsel should not be allowed except in the cases of murder, rape, dacoity, robbery, etc. Views of State Governments Out of nine responses of dillerent State Governments, the Governments oi Goa, Andhra Pradesh, Mizoram and Pondicherry have supported the proposal for view of amending Section 41, 50 and 56 of Cr. BC. to entitle the accused to have his conusel present at the time of interrogation. The Government of Goa has also quoted the judgement of Nandini Satputhi v. P./V. Dam', i978 Cr. L.J.

968. The Government of Andhra Pradesh states that in most of the countries, a person arrested by the police is allowed immediate access to his attorney. Even Article 22 of our Constitution lays down speciﬁcally that the arrested person should not be denied the right to consult and defend himself by a legalcounsel of his cho- ice. The Government of Andhra Pradesh is of the view that law on this point should be elaborated by speciﬁcally providing that before interrogation starts by the police, the arrested person should be allowed to consult his legal counsel. It also advocates that where arrested person cannot afford a legal counsel, the State should itself provide him the assistance of a legal counsel of his choice out of a panel of advocates appointed by the Human Rights Commission or the Dist- rict Legal Aid Committee The remaining State (iovernments have disagreed \\ith such proposal and they have suggested not to confer any such right, as it will delay in investigation of crime.

3. Medical Examinatian of Victiins/Suspects ISSUE NO. 3 Should. the law provide that on arrest of a person it should be mandatory for a_ police officer ora public servant holding the custody of the person to get him medically examined, before commencing the interrogation '.' Views of Academicians The academicians have supported the proposal ol" the Law Coininission and responded in aﬂirmative but they have raised the doubt whether such medical ofﬁcer should be available to persons arrested in remote village areas or tri- bal areas. Despite this fact they have urged to amend the provisions in Cr. P.C. and make it mandatory on police to get the person medically examined before he is taken into custody.

0'?

Views of the Judges Out of the ﬁve, three have supported the proposal of the Law Commission, one has disagreed and one has not given the reply directly. Those who are in fav- our of providing the provision for compulosry medical examination of person being arrested have felt that the amendment will be useful and serve as a safeguard against public atrocities.

Viwes of Advocates Out os six advocates two have supported the proposal and recommended for amendment to provide medical examination of arrested person; one of them has deviated from direct reply and three have opposed the proposal as they do not feel it necessary. One advocate has advised that in addition to medical exami- nation which is necessary as and when the arrested person is produced before a Magistrate, the Magistrate should satisfy himself that the arrest took place on the date and time as recorded by the police and not earlier and that arrested per- son has not been subjected to any torture before his production in the Court. A- Senior Advocate of the Supreme Court has stated that the person in custody has got the right of medical examination under Section 54 Cr. PC. but the police ofﬁ- cer while arresting such person should also inform him that he has got the right to be examined by a medical oﬂicer.

Views of Police Oﬂicers Out of three, one of them feels that there is no need to make a provision, the other says that law may not be amended but administrative instructions may be issued, that if at the time of arrest a person is found inﬁrm, injured. etc., he should be mediaclly examined. The third is in favour of the proposal of the Law Comm- ission provided that the medical officer is available near the police station.

Views of State Governments All the responses received from nine State Governments/Union Territories do not favour the proposal. The Government of Andhra Pradesh states that it may not be practicable to follow this in all cases. This may be followed in cases where the arrested person or his counsel or relatives request for a medical examina- tion, the police should be duty bound to allow the same.

4. Presumption against Police Ofﬁcer or public servant ISSUE N0.

Whether Section 114 of Indian Evidence Act should be amened provide for raising presumption against the police oﬁicer or publice servant in case of any injury caused to a person in custody or resulting into death. Should the presump- tion be rebuttable ?

Views of Academicians Out of two academicians, one has responded in affirmation. The other has not touched the issue.

Views of Judges Out of ﬁve Judges, almost all of them are in favour of the presumption in case of custodial death and have answered it in aﬁirmative. One of them Mr. Justice Rizvi from J &KHigh court says the presumption must be rebuttable. One of the judges has suggested to amend Section 114 of Evidence Act and the presumption should be rebuttable under Section 4 of the Evidence Act. Mr. Justice Ranganath Mishra is of the view that public sentiment seems to be in favour of raising presumption. However, an exception may be made in the cases of grievous injury and death and the rebuttable presumption could be proved in such cases.

Views of Advocates Out of seven responses, ﬁve are in favour of rebuttable presumption. They feel that once the presumption under section 114 of Evidence Act is introduced, it would deﬁnitely go a long way in restricting and controlling the prosperity of public servant or police officer in existing custodial cruelty or torture on arrest-

ed person.

_70 Views of Police Oﬂicers Out of the twelve views i'-;tC€l'~\,'"fl the Law Commission, three senior pol- ice otﬁcers have supported tin: :3 of oresurnption and rest have opposed the same. Those who are against 2; ed that there is no need of amending Section 114 of the Indian Evidence Act. The Police officers of higher ranks have no ob- jection to third-degree method.

Views of States Governments Out of nine State Governments/UnionTerritories. four are against the idea of presumption and five seem to l'-2'.-'e to objection to amending Section 114 of the Evidence Act to draw presumption that injury caused during custody was caused by the oﬂicer under whose custody the person was given at that time. The Govern- ment of Andhra Pradesh feels tlzat the provisions contained in Section ll4(A and 1l4(B) of the Indian Evidence Act. if extended to custodial crimes the pol- ice oﬂicer concerned will be made tccotmtable and the custodial crimes can be checked. The Governments of PC~l'»(llCl'iC'i'i'"] and Mizoram follow this view. The Governments of Goa and Meglialrtya also favour the proposal. The Government of Goa also states that it should be specified whether the benefit of presumption applies to cases of grievous hurt or to cases of simple injury as well.

5. Independent Agency for holding Enquiry ISSUE NO. 5 The ﬁfth issue raised by the Law Commission was whether the law should provide for independent agency for holding inquiry into the complaint of tor- ture or death of a person in police custody. What should be that agency ? The Law Commission also raised further question whether the purpose will serve if the inquiry is held by the ChiefJudicial Magistrate or Vletropolitan Magistrate in case of torture and injury and by Sessions Judge of the District in case of death ? Should they get the assistance of C.l.D. or my police, olicer of their choice.

Views of academicians The academicians favoured an independent agency for holding the enquiry into custodial crimes. One of them adds that Women's Commission Act provides for an independent agency.

Views of Judges All the ﬁve judges are in favour of a law providing for an independent agency for investigation of cases. One Hon'ble Chief Justice of a High court has suggested that it will be really worthwhile to empower the Chief Judicial Magistrate and Sessions Judges to take cognizance of the reports to custodial violence and custo- odial death respectively. By doing so police agencies will be supervised by judicial . cers. The other Judge has indicated that newly constituted Human Rights mmission will be proper agency.

View of Advocates Except one advocate who has not replied to the question, rest of them are in agreement with Law Commissions suggestion that an independent agency is necessary for investigation of custodial death or torture during custody. They Eel that if the inquiry is held by Chief Judical Magistrate or Metropolitan Magi- istrate or Senior judge as the case may be the Code of Criminal Procedure will have to be changed quite substantially for the purpose of holding the trial of oﬁence. They have said that police administration should not be allowed to par- ticipate in such inquiry. They feel that C.B.l. being a part of police administration does not hold better position in public trust.

Views of Police Officers Out of twelve only three are in favour in independent agency. One Ex-Co- mmissioner of Police, Delhi, prefers setting up of a separate organisation under ﬂae Government headed by serving or retired judge in every State to look into the torture or custodial death. A majority of police oﬂicers are not in favour of 71 any such agency. They said that in Maharashtra there is an order of state Govern- ment for investigation of the cases of custodial deaths or custodial violence or rape by the State C.I.D. and similar practice is followed in other States also. In Tamil Nadu P.S.O. 445 Vol. I placed on the procedure in cases of police tor- ture, death in custody, rape etc. for other public servants investigation is carried out by police and action taken according to law. Investigation by the Executive Magistrate is adequate in actual experience. According to them, the suggestion made by the Law Commission will not serve the purpose because C.J. Ms and Sessions Judges are already over-burdened and it will take a long time in enquiry and then case will be registered. The purpose would be served by making investigation of such cases by State C.I.D. or a central independent police agency mandatory and providing for investigation by Human Rights Commission in any case where the investigation by such an agency is not found to be satisfactory.

Views of State Govemments/Union Territories Most of the State Governments/UnionTerritories are against the suggcss- tion of an independent agency. One of these has suggested that an inquiry by a. Magistrate under Section 176 Cr. P.C. will serve the purpose. The Government of Andhra Pradesh feels that the Human Rights Commission both at Central and State level created by an ordinance will have an investigating machinery of its own to investigate complaints of torture or death of a person in police custody. Izfother agency is required. The Governments of Mizoram and Pondicherry follow t 's view.

The Government of Karnataka is of the view that there are no two opinions as regards entrusting cases of torture or death in police custody to an indepen- dent agency for a thorough investigation. It adds that entrusting enquiry of all such case to the judicial authorities would not be advisable. In Karnataka cases of custodial death are referred to the COD. Cases of torture in custody are also dealt with departmentally.

The Government of Meghalaya holds that such mandatory inquiry may be conducted by an Executive magistrate. Section 176 Cr. P.C., may need amend- ment. The Magistrate may have the assistance of the CID or any police oﬂicer of his choice.

The Government of West Bengal is of the view that in case of torture or death in custody, it will be suiﬁcient if a Intlicial Magistrate having jurisdiction holds inquiry. He should have the liberty to ob an the assistance of the Criminal Investi- gation Department of any police oiiicer with? :1 the jurisdiction.

The Government of Bihar and Goa are against the proposal.

Sanction for prosecution ISSUE NO. 6 Should a criminal case be registered against the delinquent police officer or the public servant, if a prima facie case of torture, injury or death is found without any further investigation and without obtaining sanction of the Government for the prosecution of such delinquent public servants puunder Section 197 Cr. P.C. Views of Academicians Both the academicans are of the view that Section 197 Cr. P.C. should be amended.

Views of Judges All the ﬁve Judges who have forwarded their views, answerecl the issue in aﬁrmative. According to the ex-Chief Justice of India, the judicial opinion is clear and there is no need for sanction for prosecution.

Views of Advocates Out of six Advocates, ﬁve Advocates have agreed with the proposal of Law Commission for amending Section 197 of Cr. P. C. one has suggested that delin- quent oﬂicer should be kept under suspension immediately. One senior Advocate of the Supreme Court is against registizttion of a criminal case. He feels that the Court should take the cognizance of the case on the basis of report of the magis- istrate.

Views of Police Oﬂicers Out of twelve, ten senior police ofﬁcers are of the view that a criminal cases should be registered against the delinquent ofﬁeer and no sanction of the Govem- ment is necessary under Seztion 197 Cr. P.C. But in circunstances like escaping from police custody and jumping from train at the time of transfer from one place to another, prosecution without sanction will be unfair and unjust.

Views of State Governments,' Union Territories Out of nine responses received from various State Governments/Union Terri- tories, three are in favour of not amending Section 197 of Cr. P. C. One State Government is of the view that a criminal case be registered against the delinqu- ent police oﬂicer or public servant after a thorough investigation is made and with the sanction of the government under Section 197 of Cr. PC. The Governments of Rajasthan, Bihar and Meghalaya favoured the 'proposal. The Government of Andhra Pradesh states that the provision under sub-section (1) of Section 176 of Cr. P.C. suggested by the Law Commission will be more appropriate for deal- ing with the delinquent public serv:.:1;. The Government of Mizoram endorses this view. The Government of Poaididiierry is of the view that for registering a criminal case no sanction under Section 197 Cr. P.C. is necessary.

Compensation on no fault basis ISSUE NO. 7 Should there be provision for the award of compensation by the Government on no fault basis in the case of death or injury caused to a person ? If so, what would be the appropriate amount to be ﬁxed? Should the Court trying the aforesaid delinquent otﬁcer have the power to award ﬁnal compensation to the victim or the dependents of the victim, notwithstanding their right to obtain dama- ages in tort before Civil Court ?

Views of Academicians Both the academicians agree with the poposal of compensation. They have suggested payment of compensation. One of them suggested that the compensa- tion should not be on the basis of earning and status as in matters of accident cases. He has suggested compensation of Rs. 5,00,000 in case of death, Rs. 3,00,000 in case of crippling and Rs. l,O0,000 for minor injury.

Views of Judges All the Judges except a one have supported the proposal of compensation. Two of them are of the view that compensation should be on no fault basis. One of the Judges has suggested the amount of Rs. 50,000 in case of injury, between Rs. 2,00,000 to Rs. 5,00,000 in case of death. One judage is against any such move and he is of the view that State should not be made liable to pay compensation and the other has not responded to the issue.

Views of Advocates All the six Advocates are in favour of compensation. Two of them recomm- ended it in addition to civil remedy under torts. They want a public compensation system. The other two Advocates are of the view that the quantum of compen- sation should be determined judicially, while the ﬁfth one has mentioned that the compensation should be ﬁxed one. Sixth opinion is that quantum must de- pend on the nature of injury and liability of victim. One of the senior Advocates, Shri Anand Prakash is of the view that there should also be a scheme for rewards anddcompensation for exemplary work and for injuries received to a Police oﬁicer on uty.

Views of Pollce'_fOﬂicers All the twelve police oﬂicers have supported the cause of compensation but on no fault basis. One officer has suggested Rs. 25,000 and Rs. 1,00,000 respecti- vely in the case of injury and death. The other has reduced this ﬁgure to Rs. 25,000 and Rs. 50,000 respectively.

Views of State Governments/Union Territories All the nine States Govemments/Union Territories are in favour of paying compensation when a prima facie case is made out. One of these is not in favour of recovery of the money from the delinquent police oﬂicer. The other one says that Government should not pay the compensation and the individual police offi- cer should pay the amount as per his ﬁnancial condition and capability. The Gov- ernment of Andhra Pradeshis of the view that the provision for payment of comp- ensation to the custodial victims is necessary. It accepts the proposal of the Law Commission. Further, it highlights that in cases where a commission appointed by the Government ﬁnds the police oﬂicer in a particular custodial crime to be guilty, the departmental enquiries are resulting in these ofﬁcers, in exoneration. According to the Government, it will be a travesty of justice. It suggests that where a departmental ofﬁcer imposes a minor penalty like stopping of increments, cen- sure etc., the head of the department should report the matter to the Govern- ment so that where the Government is satisﬁed that the punishment is not in proportion to the gravity, should review the punishment. The Government of Mizoram endorses this view.

The Government of Karnataka is of the view that there is no need for asepa- rate provision under the statute for awarding compensation. There should not be a parallel proceedings in the civil courts for claiming damages.

The Government of Pandicherry is of the opinion that the court trying the delinquent oﬁicer should have the power to award ﬁnal compensation and not the civil court. If the victim is not satisﬁed with ﬁnal award, he may seek redress in appellate court and not in a civil court '.7 Interim Compensation ISSUE NO. 8 Whether the law should provide for interim compensation ina case where as a result of the enquiry Prima facie case of torture, injury or death on account of injury caused in custody is made out ?

Response of the Academicians Both the academicians supported the proposal ofjgthe Law Commission for interim compensation if the primafacie case is made out.

Response of the Judges Out of the ﬁfteen Judges, four agreed with the proposal of interim compensation. One has suggested the amount of Rs. l,00,(X)0 in case of death and Rs. 50,000 in disablement, 20,000 for any other injury. Another gives Rs. 50,000 in death and Rs. 10,000 for injury. The other says reasonable compensation be given. One judge who disagreed feels that such a measure will create unnecessary complication. One judge has not responded to the issue directly.

Response of the Advocates} All the six Advocates are in favour of interim compensation. Out of them three Advocates are of the view that the interim compensation should be given by the Trial Court as soon as the charges are framed.

Response of the Police Otﬁcers Out of these twelve Oﬂicers, ten have clearly recommended interim compensa- tion and two have not tan?-Md the issue.

Response of State Governments/Union Territories Out of nine, the views of ﬁve are in favour of- interim compensation and four are opposed to such proposal. The Govemmentof Andhra Pradesh is of the View that a provision for payment of interim compensation when a prima facie case is made out, is essential. The Governments of Pondicherry and Mizoram also endorse this view. The Governments of Bihar and Goa also favoured the proposal.

Recovery from Oﬂicers ISSUE NO. 9 Should the law confer power on the Government to recover the amount of compensation from the delinquent ofﬁcer ?

Views of the Academician:

Both are of the view that compensation amount should be recovered from the delinquent oﬂicer in full or in part but one has raised doubt as to how the money will be collected from individual police man.

Views of the Judges Out of ﬁve judges, four are in favour of recovering the amount from individual and not from the Government. One has not responded to the issue directly. All of them have supported the proposal that recovery should be made from delinquent officer. One has suggested that the recovery should be to the extent it is feasible. The other Advocate is of the View that the recovery should be imposed only in the cases of gross neglect of law causing hurt, torture or injury or death.

Views of the Police Oﬂicers Out of twelve Police Officers, only three are in favour while rest of eight disagreed with the recovery of compensation from iindividual and one is of the View that it should be left to the discretion of the Government.

Views of State Governments/Union Territories Out of nine, three of these are in favour of recovering the amount from the delin- quent ofﬁcer and two State Governments are in favour of the recovery from delinquent officer to the extent of 50 per cent of the amount. The Government of Pondicherry views that at least a small percentage of the compensation should be made recover- able from the delinquent oiﬁcer. The Government of Goa disagrees with the pro- posal. Government of Andhra Pradesh suggests for considering the issue carefully because it is a critical issue. The Government of Mizoram also endorses this view. The Government of Karnataka is of the View that «since the trial court will have to determine the quantum of compensation, there need not be any other provision Eﬂ'ect of the proposed amendments on police functioning ISSUE NO. 10 Will the aforesaid steps not affect thefunctioning and morale of the police adversely in investigating cases and further whether it will result into non-investigv tion of crimes which will affect public order 'I Wlut measures should he takes: to avoid these situations ?

Views of Academicians None of the academicians have responded to the issue directly.

Views of the Judges Out of the five judges two are of the view that it will adversely aﬁect and two are of the view that there will be no adverse eﬁbct on the morale of police. One has not responded to the issue. .

Views of the Advocate:

All the six Advocates who have responded say that this will not affect the morale of the police and investigation will also not be adversely affected.

Views of the Police Oﬂicers Out of the twelve police oﬂicers, six say that it will not meet the morale. 6 say that there will be no effect.

Views of State Govei-nmentsfUnion Territories Out of nine responses received, ﬁve State Governments/Union Territories do not agree with the view. Government of West Bengal suggested that a balanced ap- proach should be taken. The Government of Rajasthan emphasizes that in the short term the steps recommended will lead to some dislocation of police function- ing and also erosion of police morale but ultimately they will help in reducing police excesses. Once these steps are implemented, the police will function under a lot of constraints and the courts should take cognizance of the same. The courts would have to take into account the near absence of recovery of incriminating material and would have to rely on oral evidence. Thus a new interpretation of the Law of Evidence would emerge and any failure of the courts to place faith in police investiga- tion would adversely affect public order in the long run.

The Government of Andhra Praclesh is of the view that the steps contemplated in the working paper will not affect the functioning and morale of the police. On the other hand, the police excess can be reduced to the minimum. Therefore, there is need and urgency for the police reforms which cannot brook any further postpone- ment. The Governments of Mizoram and Pondicherry endorse this view. The Government of Karnataka states that it certainly does affect the functioning and morale of the police adversely who are investigating cases. To ensure that third degree methods are not employed during invsetigation of crimes. 3 is absolutely necessary that certain safeguards are provided to prevent such torture or custodial death of accused persons. Punishing guilty police oﬁicers does not, however, in any way be construed as weakening the morales of the investigating oﬂicer. An investiga- ting oﬁicer should know his limitations and he should not have unbridled power which can be detrimental to the interests of the citizens.

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