Article on "Custodial deaths and rights of an arrested person" by Shrushti Kolhe

 

Name: - SHRUSHTI KOLHE

Course: - BBA LLB

Semester: - 2^nd semester

College: - Army Law College, Pune

 

Custodial deaths and rights of an arrested person

 

English jurist William Blackstone once said, "It is better that ten guilty people escape than one innocent suffers". This classical philosophy is also found in many religious texts and serves as a foundation of our criminal law. When we scrutinize this expression, we'll get to know the primary objective of the law. Most of us think the law is only made for punishing the guilty but we always forget the primary objective of the law is to protect the innocent.

 The doctrine of presumption of innocence affirms that a person is considered innocent until proven his crime but custodial deaths are contemplated as a practical joke on them because if an arrested person is considered innocent until proven guilty then the death of that personshould be termed as a felony murder but no strict action is taken against them.

 

Meaning of custodial death:

It means the death of a person caused due to acts committed directly or indirectly upon the arrested person in the custody. A suspect arrested by the police is considered to be in police custody and the death of that person occurring in a police station, private or in medical premises, in a public place, or in jail is termed as custodial death.

There are different types of custody:

·         Police custody

·         Judicial custody

The death of a person in any of this custody is included in custodial death. It can happen due to natural causes, suicide, mental and physical torture. We do not know the true reason behind the custodial death, it depends on the situation. In addition, if we want to understand any situation, we have to understand the psychology of people in that locus.

Psychology of police: -

Police symbolize safeguard and are the shield of the society. They are the keepers of law but that does not give them the supremacy to abuse the innocent. Our expectation from police is that they should maintain peace in the nation and they should keep every citizen safe. To meet these expectations some police officers, go beyond their power. They should respect the limits of their power. The police represent the state and the state represent the society. Misdeed by police represents the defectiveness of society. Despite intricate legal provisions and instructions to police, some police officers have this notion that they can do anything and no one will take any action against them as they are the law enforcer. They believe they can get away with custodial violence as they are doing their job and the government will whitewash their misdeeds.

Torture in custody is the habitual practice of police. They say it's the only way to get information and it's positive torture. How can severe beating, hanging upside down, electric shock, burning, stabbing, or putting chilies on the body be considered positive torture? Section 330(act) covers 'torture' by police and it does not mention anything about positive torture, so we should assume that it’s just the perception of few police officers to justify their action. Not all police officers are indulging in torture and brutalities. Some worst police officers who are the darlings of dirty politicians are indulging in this heart-shaking brutality on mankind. Another belief of police is to keep the arrested person in their custody until they give information which sometimes lasts for more than 24 hours. They believe to get information from an arrested person by hook or by crook. Explanation of custodial death given by police is mostly heart failure, sudden illness, suicide, or died of some mysterious reason which is unjustifiable.

 

Psychology of arrested person: -

 Our culture does not practice cruel or barbaric acts against humanity. When someone is arrested, they get panic-stricken because of their lack of legal knowledge. They don't know how to get out of this situation. Dealing with police makes them emotionally weak and some image-conscious people opt for suicide because an arrested person is considered a criminal by society. According to section 167 of the code of criminal procedure, a person may be held in custody for 15 days on the order of a magistrate but in those 15 days, the arrested person is treated like a criminal although the allegation is not proven. The victims of custodial death are mainly people from the economically weaker section who are illiterate or person with a certain disability. They can't raise their voice against the police and are unaware of their basic human rights. Some arrested person reported that they were taken into custody on baseless grounds. Police use third-degree torture because the burden of proof lies on them. Section 330 and 331 of IPC,1860 makes it a punishable offense if any hurt is caused for confession in police custody, any confession, or any information which may lead to the detection of misconduct. Section 25 and 26 of Evidence Act of 1872 proof of confessions made in police custody irrespective of their voluntary or not. Such confession is presumed to be coerced. Despite having such a law, custodial violence is very common in our country and that's what scares people the most. An arrested person gets so scared regardless if they have done something or not.

 

What happens after a custodial death?

National human rights commission's guidelines say that custodial deaths should be reported within 24 hours of their occurrence, and if failed to report would give rise to a presumption that there was an attempt to suppress the incident but no strict actions can be taken against them because police are very good at giving vague excuses. The post-mortem report should be submitted together with videography of that post-mortem within two months of the incident. Section 176(1A) states that every custodial violence should be looked after by a judicial magistrate and their inquiries should be completed as soon as possible. The national police commission suggested that there should be obligatory judicial inquiries. The outcome is occasionally the police officer is suspended for custodial death but there is no proper court hearing for that because policemen are bounded by brotherhood, they choose to be silent and cover-up for their subordinate.

 

 

Rights of an arrested person

Following are certain rights of an arrested person and should be known by every citizen because they are considered as basic human rights. An arrested person is not a criminal until his offense is proven in court and the burden of proof is on prosecution so keeping that notion that no rights should be given to the arrested person will be very wrong.

 

1)      Custodial memo

A custodial memo is made to thwart custodial violence. When a person is arrested, the police officer shall provide a "custodial memo" to the arrested person's guardian, relatives, or any concerned person.

Necessities in a custodial memoare: -

·         Date of arrest

·         Time of arrest

·         Place of arrest

·         Cause of arrest

·         Reference of an offense committed

·         Name of the police station

·         Name of the liable police officer

 

2)      Right to be silent

·         No one can force the arrested person to give any statement, they have the right to keep silent during cross-examination.

·         Section 313(3) of criminal procedure elucidates the right to silence.  These right states that an arrested person is not punished if he/she refused to answer the question. They have the right to answer the question when they are sure about it.

 

3)      Right to know the grounds of arrest

·         Section 50 of the criminal procedure states that a police officer must inform the arrested person about the offense for which he/she is arrested.

·         Section 50(A) of criminal procedure states that the arrested person can inform about the arrest of any of his friends, relatives, or family.

·         Article 22(1) of the constitution of India states that no police officer can arrest any person without informing the ground of arrest.

 

4)      Information regarding the right to be released on the bail

·         Section 50(2) of criminal procedure states that police officers should inform the arrested person that he has a right to be released on bail unless the arrested person did a non-bailed offense.

 

5)      Right to be taken before a magistrate without unnecessary delay

·         Section 55 of criminal procedure states that if a police officer arrests a person without a warrant, they should present the arrested person before the magistrate.

·         Article 22(2) of the Indian constitution states that the police officer making an arrest should be presented before the magistrate within 24 hours of arrest.

 

6)      Right of not being detained for more than 24 hours without judicial scrutiny

·         Section 57 states that no police officer shall detain an arrested person in custody for more than 24 hours. No police officer shall detain in custody an arrested person without a warrant for a longer period.

 

7)      Rights at a fair trial

·         Article 14 of the Indian constitution reflects the right to equality before the law. The trial should be fair and it must be an open court trial. Both parties should be given fair chances to prove their point. The impartial court is the highlight of this right.

 

8)      Right to consult a lawyer

·         Section 41D of criminal procedure states the right to consult a lawyer during interrogation.

·         Section 22(1) of the Indian constitution states the right to have a lawyer.

·         Section 303 of criminal procedure states that a person who has committed an offense has a right to be defended by a legal practitioner of his choice.

 

9)      Right to free legal aid

·         This right replicate giving free legal service to the poor and needy who are unable to afford any lawyer for their case. Our legal system promotes justice and free legal aid act as a helping hand in that.

 

10)  Right to be examined by a medical practitioner

·         Section 54 of criminal procedure states that an arrested person can demand medical examination in case of torture. Medical evidence is considered very important in this contemporary legal system.

 

Conclusion

Custodial violence has shaken our faith in law because it's committed by someone who is supposed to be the protector of the innocent.  They are considered mysterious scenarios because the true reason for death is mostly left hidden. These deaths are very complicated and controversial crime in India as it violates basic human rights. Using the word custodial death is inappropriate it should be 'custodial murder' or 'cold-blooded murder’ as they are considered as one of the cruellest crimes in the world.  Getting arrested is like a spider web, if not known your basic human rights, you can't do anything and get trapped in that web. Every citizen should be aware of their basic rights. The court should opt for proper inquiry for custodial death as we can see most of the custodial deaths have gone unpunished.  Police should be the peacemaker but they are considered dreadful because of custodial violence. Citizens are losing their faith in police on the other hand society should not look at the arrested person as if they are criminals until their guilt is proven, which creates psychological pressure on an arrested person resulting in suicide.  Everyone should play their role appropriately.