Custodial Torture Is Prohibited, But Police Can't Be Held Liable On Disputed Allegations: Delhi High Court

The Delhi High Court has observed that no person, whether a witness or an accused, can be subjected to torture or cruel, inhuman or degrading treatment while in police custody.

Justice Madhu Jain held that a finding of custodial violence against individual police officials cannot be returned merely on the basis of disputed assertions.

The Court said that the safeguards laid down by the Supreme Court in D.K. Basu v. State of West Bengal are binding upon every police official.

The Court, however, observed that before directing action against police officials or awarding compensation to aggrieved individual, allegations of custodial violence must find prima facie support from the material placed on record.

”….a finding of custodial violence against individual police officials, followed by directions for departmental action and payment of compensation, cannot be returned merely on the basis of disputed assertions,” the Court said.

The observations came while dealing with a plea filed by two persons alleging illegal detention, custodial assault, torture and extortion by police officials in connection with an investigation into a theft case registered at Police Station Jyoti Nagar.

They claimed that they had initially been detained at the police station for around six hours and that the concerned police officials had demanded and received Rs. 25,000 before allowing them to leave.

They further alleged that they were called to the police station again and pressured to confess their involvement in the theft. According to them, one of the petitioners was assaulted after refusing to confess.

For context, this is not the first case of allegations of custodial torture in Jyoti Nagar Police Station. A Delhi court had ordered an FIR against a former SHO for custodial torture with men during the 2020 North-East Delhi riots.

One of the young men, 23-year-old Faizan, had died and the investigation of his death was transferred to the Central Bureau of Investigation (CBI) by a coordinate bench.

In the case at hand, the petitioners contended that they had not been named in the FIR and were called as witnesses in the investigation and relied upon a notice issued under Section 179 of the Bharatiya Nagarik Suraksha Sanhita (BNSS).

The Delhi Police, on the other hand, submitted that the concerned petitioner had not been called as a witness but was being proceeded against as an accused. It relied upon a subsequent handwritten complaint in which the complainant had allegedly expressed suspicion against the petitioner in question.

Dismissing the plea, Justice Jain observed that the fact that the petitioners were not named in the FIR could not, by itself, establish that they had been called only as witnesses, since the FIR was initially registered against unknown persons.

The Court said that the real issue was not the capacity in which the petitioners were called to the police station, but whether the material on record established custodial assault.

It noted that the MLC of one of the petitioners recorded a history, as narrated by him, of physical assault at Police Station Jyoti Nagar and also noted tenderness and swelling over different parts of his body.

However, the Court said that while the MLC constituted contemporaneous medical material showing that the petitioner had been examined and injuries were noticed, the history recorded was based on his own account and did not identify the person who allegedly caused the injuries.

“No independent or corroborative material has been placed on record connecting respondent nos. 2 and 3 with those injuries. Further, no corresponding MLC of petitioner no. 1 has been filed, despite the allegation that both petitioners were assaulted,” the Court said.

As regards the PCR call relied upon by the petitioners, the Court observed that the PCR call record itself was not placed on record and thus, its timing and circumstances could not be determined from the material available.

“There is also no independent material substantiating the allegation that a sum of Rs.25,000/- was demanded and paid. The subsequent complaints submitted by the petitioners reiterate their version of the incident but, in the absence of any corroborative material, cannot by themselves establish the allegations made therein,” the Court noted further.

It held that on the basis of material placed on record, the Court was unable to conclude that the police officers had subjected the petitioners to illegal detention or custodial torture.

”Consequently, no ground is made out for granting the reliefs sought in the present petition,” the judge held.

Title: AKASH & ANR v. STATE (GOVT. OF NCT OF DELHI) & ORS

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