Custodial Deaths : What Is The Procedure For Inquiry?

"Custodial death is one of the worst crimes in a civilised society governed by Rule of Law. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? The answer, indeed, has to be an emphatic "No"" - Supreme Court in D K Basu v State of West Bengal AIR 1997 SC 610.Independent investigation in a case of custodial death/torture, at least in the initial stages, is a big problem, owing to the obvious fact that the police are called upon to probe against themselves. The Supreme Court had commented about the 'ties of brotherhood' within police, which stall fruitful investigation in cases of custodial violence, as follows :"...rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel would be available. Generally speaking, it would be police officials alone who can only explain the circumstance in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that police personnel prefer to remain silent and more often than not pervert the truth to save their colleagues" (State of MP vs Shyamsunder Trivedi, 1997).In many cases, investigation is later handed over to independent agencies like CBI, or Special Investigation Teams, mostly as a result of cases fought by the relatives of the victims. But such a subsequent transfer of probe cannot assure concrete results, if the investigation in the initial crucial stages of evidence collection such as post-mortem, inquest etc., has been manipulated.To take care of this problem, the law has envisaged a process of parallel Magisterial Inquiry, immediately after the incident.This is as per Section 176(1A) of the Code of Criminal Procedure, inserted after 2005 amendment to CrPC.Section 176(1) CrPC states that a Magistrate, who is empowered to hold inquests with respect to an unnatural death, may hold an inquiry into the cause of death in addition to the investigation held by the police officer. This is only a general, empowering provision, giving Magistrate the discretion to hold such an inquiry. Another fact to be noted is that such inquiry can be held either by an Executive Magistrate or Judicial Magistrate.On the other hand, Section 176(1A) is a special provision to deal with cases of death, disappearance or rape in police custody. The provision says that in such cases, the Judicial Magistrate or the Metropolitan Magistrate, within whose local jurisdiction the offence has been committed, shall hold an inquiry in addition to the inquiry or investigation held by the police.The section can be broken down as :This inquiry is parallel to the police investigation into custodial death/rape/disappearance.This inquiry cannot be done by an Executive Magistrate and must be carried out by a Judicial Magistrate.This inquiry is mandatory(denoted by the use of word "shall" in distinction with the use of word "may" in Section 176(1)).Section 176(5), also inserted after 2005 amendment, mandates that the Magistrate holding such inquiry should, within 24 hours of the death of the person, forward the body with a view to it being examined to the nearest Civil Surgeon. If it is not possible to do so, reasons must be recorded in writing.In 1994, the Law Commission of India, after taking note of abysmal rates o conviction in cases of custodial violence, had recommended the insertion of these provisions - Sections 176(1A) and 176(5) - in its 152nd report. They were inserted a decade later, as per 2005 amendment.The National Human Rights Commission has also issued guidelines for Magisterial Enquiry, as per which it should cover the following aspects.The circumstances of death The manner and sequence of incidents leading to death The cause of death Any person found responsible for the death, or suspicion of foul play that emerges during the enquiry.Act of commission/omission on the part of public servants that contributed to the deathAdequacy of medical treatment provided to the deceased. The NHRC has also set a two month deadline for the completion of enquiry by Magistrate.Non-compliance of Section 176(1A)Despite the mandatory nature of this provision, its compliance is highly rare. In January 2020, the Supreme Court had issued notice on a Public Interest Litigation petition seeking a directive to all States/UTs for strict implementation of Section 176(1A). That PIL filed by human rights activist Suhas Chakma stated that out of 827 cases of death or disappearance of persons in police custody between 2005 and 2017, judicial inquiry was ordered only in 166 cases i.e. 20% of the total cases."Section 176 (1A) since its enactment has been left untouched, remained only in the statute books, and not implemented on the ground with the consequence of rising custodial crimes.," the plea said.Even in the Jeyaraj-Bennix custodial deaths cases of Sathankulam, Tamil Nadu, the Madras High Court had to...

Custodial Deaths : What Is The Procedure For Inquiry?

Manu Sebastian

Tags