The Supreme Court has issued notice to the Central government on a plea seeking mandatory judicial probe in cases related to death, disappearance and alleged rape in police custody or in jail.
According to Petitioner Suhas Chakma, a human rights activist, the government has failed to implement Section 176 (1A) of CrPC which prescribes mandatory judicial probe in such cases. He submitted that the number of custodial deaths/ rapes per day in India have increased by 66% after the enactment of the mandatory provision on June 23, 2006.
The bench headed by Justice RF Nariman has asked the Centre to file its reply within four weeks.
The Petitioner has submitted that even though Section 176(1A) of CrPC uses the word "shall", securing judicial inquiries into death or disappearance of a person or alleged rape in custody has become an uphill exercise and an insurmountable political battle.
He submitted that in Assam, some 58 cases of death in custody were reported however, an inquiry was made into only one of them. Similarly, in the national capital, only one of five such cases was looked into.
Death in Custody Without Remand Order
He pointed out that as per the "Crime in India" Annual Reports published by the NCRB, there were 827 cases of "death or disappearance of persons in police custody without court remand between 2005 and 2017 and 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.," he remarked.
He vehemently argued that such death or disappearance of persons not remanded to police custody by courts is sheer murder and it exposes the abysmal failure of the laws relating to arrest and detention, laid down by the Supreme Court in D.K. Basu v. State of West Bengal.
Death in Custody With Remand Order
The Petitioner further submitted that once a person is brought before the Court and the court orders remand, judiciary also becomes a party for protection of the right of the life of the person.
Nevertheless, total 476 persons in police custody with court remand were reported dead or disappeared between 2005 and 2017 and yet, judicial inquiry was ordered only in 104 cases i.e. 21% of the total cases.
Condemning the same, the Petitioner said,
"The death or disappearance of persons in police custody after court grants remand and the failure to order judicial inquiry as per Section 176(1A) is a colossal and unconscionable failure of the lower judiciary."
He submitted that as per the NCRB's data with respect to 476 cases of death or disappearance of persons remanded to police custody by court, 266 cases were registered, 54 policemen were chargesheeted but not a single policeman was convicted as on date.
Executive Magisterial Inquiries
The Petitioner also pointed out that the meager number of cases where inquiries were held was not satisfactory as the same was conducted by Executive Magistrates and not by Judicial Magistrates.
He said that executive magisterial inquiry is impermissible under Section 176(1A) and even the Law Commission of India in its 152nd report had found them to be highly inadequate and had recommended mandatory judicial inquiries.
The Petitioner has asserted that "non-implementation of Section 176(1A) CrPC since its came into force on 23 June 2006 has effectively defeated the legislative intent to build a country governed by the rule of law. It has failed to establish transparency and act as a deterrent. The non-implementation of the Section 176(1A) has ended up shielding the law breakers i.e. delinquent police or prison officials under whose custody the heinous offence of death or disappearance of a person or rape of woman took place."
He argued that in a civilized society, it is the fear of law that prevents crimes but in India, there is effectively no fear of the law among the delinquent police or prison officials who commit custodial crimes with impunity.
Thus, he has prayed the court to direct immediate registration and initiation of proceedings under Section 176 (1A) in all such cases where such inquiries have not been commenced by the competent Judicial Magistrate enjoying territorial jurisdiction.
He also seeks directions to District / Sessions Judge of every District should file Quarterly Report(s) before the Chief Justice of their respective High Courts and NHRC, intimating the death, disappearance or rape of any person in custody and whether proceedings under Section 176 (1A) have been initiated.
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