Suggestions To Curb The Menace Of Custodial Violence And Brutality: Targeting The Ill-Conceived Notion Of 'My Area, My Custody, And My Law'

Right from Articles 21 and 22 of the Indian Constitution, Sections 24, 25, 26 of the Indian Evidence Act, 1872, Sections 330, 331, 348 and 376(2) of the Indian Penal Code, 1860, Sections 41, 41A, 41B, 41C, 41D, 46, 49, 54, 167(2) and 176(1) of the Code of Criminal Procedure, 1973; to the Section 29 of the Indian Police Act, 1861, an attempt is found made to deal with the menace of custodial violence, although for no real effect of deterrence, as the data suggest otherwise. The National Human Rights Commission (NHRC) had recorded a total of 914 deaths in police and judicial custody in the year 2020, while according to the 'India: Annual Report on Torture 2019', over five persons were killed every day in police custody in the year 2019 with total of 1731 people losing their life in custody. Further, the Status of Policing in India Report 2019 showed that 427 persons died in police custody during the period (2016-2019), and the report published by the Asian Centre for Human Rights (ACHR) in June 2018, claimed that around 1674 custodial deaths were witnessed from 1^st April 2017 to 28^th February 2018. The Universal Declaration of Human Rights, 1948, Model Police Act, 2006, the judicial precedents in the matters of D.K. Basu v. State of West Bengal AIR 1997 SC 610 (It is the right of the police to investigate the case and interrogate the accused but not allowed to use third-degree tortures to extract the information), State of Uttar Pradesh v, Ram Sagar Yadav 1985 1 SCC 552 (It is the police officer on whom burden of proof lies in cases involving custodial violence), Yashwant and Ors. v. State of Maharashtra (2018) 4MLJ (Crl) 10 SC (The conviction of few cops was upheld and it was opined that such acts by police officers tend to dilute the confidence of general public in the country's criminal justice system) and several others, seem to be a little in the sea and may be termed as aberrations alone, when in actual, according to the National Crimes Record Bureau itself, several reports of the period (2005-2018) provided that out of 500 cases of custodial deaths, only 281 cases could move to next stage of getting registered and out of this, only 58 police personnel were charge-sheeted; and eventually none faced any conviction. The recommendations of the Law Commission of India through its 113^rd Report (The addition of Section 114B(1) to the Indian Evidence Act, 1872 which would on having sufficient evidence hold the police officer in whose custody the person having bodily injuries was, to be liable for prosecution), 152^nd Report (Several measures that could be taken to reduce custodial crimes) and 273^rd Report (The government must ratify United Nations Convention Against Torture by enacting a domestic legislation against torture and when someone is accused of custodial violence, there should be default criminal prosecution and the norm of mere administrative actions should be done away with), too only added to the misery, after having not been accepted as such, being evident with consequent non-action. However, the only hope, as a latest development, in the form of direction to install CCTV Cameras in the police station, as made by the Hon'ble Supreme Court of India in the matter of Paramvir Singh Saini Vs. Baljit Singh & Others SLP (Criminal) No. 3543 of 2020, is likely to bring the necessary relief of containing the custodial violence if not completely, provided the same is implemented by the state in letter and spirit, although we are made to believe that we have already left our pursuit to bring changes through the enactment of the Indian Evidence (Amendment) Bill 2016 with corresponding expansion in the domain of Sections 330 and 248 of the Indian Penal Code, 1860. Furthermore, adverting our attention to the disdained Police Act, an archaic Act of the 18^th century, still existing around as a mere colonial hangover, makes us understand that the instances of torturing the under trials and other accused is also an archaic way of solving matters at hand, which in the opinion of 74% of the police officials who participated in the survey as reported in the Status of Policing in India Report 2019, is for the greater good of the society. Well, the same report also shows that only 6% of the police officials have under gone an in-service training in the past 5 years.

Not enough seems to have been done agreeably, and much is required at the instance of the state, in planning as well as in implementation spheres, and therefore, the following suggestions, might well, bring in some amount of change in the system concerning the containment and eradication of the menace of custodial violence, if so adopted, with or without suitable modifications:

1. Body Cams equipped with GPS Tracking and preferably with facility of recording Body Temperature of the wearer constantly, be made available to subordinate police officials (from the rank of Head Constable till Inspector, who are usually the investigating officers in nearly all cases, except few aberrations because of legal and administrative case requirements), with data being recorded in real-time, saved and preserved for a period of at least 60/90 days corresponding to the period prescribed for filing of chargesheet in the Hon'ble Court of law, till the direction, as far as it relates to the preservation of footage is concerned, in the judgement of Paramvir Singh Saini Vs. Baljit Singh & Others SLP (Criminal) No. 3543 of 2020, is complied with. The cams must be kept worn without exceptions and proper standing order(s) be issued to regulate the said functioning. The learned magistrates should, suo-moto or otherwise, review or peruse the same, as the case may be, at each stage of judicial proceedings, for the purpose of granting or non-granting of police custody or judicial custody or bail, as the case may be. The data records should be maintained with a central office and also in a different location as a back-up unit, for the entire state/union territory with no interference or intervention being possible from the concerned districts and should function under the monthly rotational charge of officer of the rank of ADGP/Special Commissioner.
2. The CCTV cameras must be installed and operationalized in compliance with the detailed directions as are contained in the judgement of Paramvir Singh Saini Vs. Baljit Singh & Others SLP (Criminal) No. 3543 of 2020. The said CCTV cameras, should necessarily cover all the entry and exit routes of the police stations, not only as per the sanctioned layout plan of the police station but also in line with the actual structure existing therein, which shall enable proper co-relation of the arrest of the accused or detention of the suspect and other instances, with entries made in the daily/general diary/memos. Further, even the lockups and interrogation rooms should have CCTV cameras installed with constant monitoring. The interrogation should be attended to or at least be monitored by the GOs (Gazetted Officers i.e. Assistant Commissioners of Police and above) through CCTV cameras. The significant part is to get the certification from the concerned agency or entity, post installation of such CCTV cameras, that no blind spots have been left, except the ones duly mentioned in the records with corresponding reasoning and/or compelling necessity and so approved by an officer of the rank of ADGP/Special Commissioner posted at the Police Headquarters.
3. The investigating officers should be provided with mobile numbers to be used for investigation and official purposes, which in certain cases be used to corroborate criminal case related evidences through provision of Call Data Records and Section 65B certificates to prove electronic evidences obtained as such. (The location of the investigating officers is seldom put into factual enquiries to draw the actual sequence and chain of events in a criminal case.)
4. The name and/or rank batch worn by the police officials should be photo refractory and bilingual. Further, wearing identity cards by the police officials must be mandatory which should be shown and allowed to be taken photo of, if requested/demanded by a member of the public, in cases of arrest and/or detention, and particularly in case of such arrest and/or detention being carried out by police officials, other than those belonging to the local/area police station(s).
5. Physiological-Physical-Medical tests and assessments of the investigating officers be undertaken every year, so as to ensure that only mentally and physically fit officials are put for investigating purposes. The said tests be done without pre-informing the officers and in random batches, by involving credible entities and agencies.
6. Specialized External Team of police officers must be created/sanctioned to be made available district wise, which may be tasked to carry out interrogation/investigation along with regular investigating officers in specific and special type of criminal offences, after seeking police remand orders from the learned magistrates. The said team should be placed under the direct charge of the area Senior/Superintendent of Police or the Deputy Commissioner of Police, as the case may be.
7. Victim Compensation Scheme must include cases of custodial violence and torture, which should not be dependent upon mere registration of F.I.R. but to be assessed by the concerned District Legal Services Authority, independently. The provision of legal aid must be provided or steps be initiated in respect thereto, even if the request for compensation simpliciter has been received raising allegations of custodial violence. In every case, the provision of 'Competent Legal Aid or Assistance' be the norm and reality too.
8. Mass awareness be created to dispel the notion that the term 'Remand' means physical torture or abuse which is believed by the common man to have the sanction of law. Remand in basic sense means sending back and police remand is actually Police Custody/Custodial Remand (PCR). The directions issued, guidelines framed as well as observations made by the Hon'ble Supreme Court of India in the matter of D.K. Basu v. State of West Bengal AIR 1997 SC 610 be put to the knowledge of every common man in this country.
9. Departmental action within the police must be of exemplary nature in matters of custodial violence, without waiting for judicial verdicts to instill confidence in the mind of the aggrieved person and potential aggrieved individual of the society. The same should not be mis-understood by anyone, as mutually exclusive with the usual process of criminal prosecution concerning such custodial violence being committed.
10. The Special Executive Magistrates (SEMs) appointed by the government stand in need for comprehensive training and orientation in light of the judgement of the Hon'ble Bombay High Court in the matter of Pravin Vijaykumar Taware vs The Special Executive Magistrate Crl. WP 2682/2008 and their capacity building should be undertaken so that proper evaluation is made before remanding the accused person to judicial custody/magisterial custody remand in a mechanical manner in exercise of the powers provided for under Chapter VIII of Code of Criminal Procedure, 1973, as judicial work is a pious ritual of rendering justice which should not be blackened by routine or stray instances of causing death of innocence and propelling distrust upon the system. Needless to mention that a single day custody in jail might be a trauma for lifetime which may never be healed through medicinal or other processes and therefore punitive theory be exercised judiciously with caution of consequences entailing.
11. The learned judicial magistrate (first class or second class) or metropolitan magistrate, at the case may be, must invariably seek and sign with date and time, the relevant entries of the case diary of the investigating officer, as and when, an application is preferred for seeking police or judicial custody. The learned magistrate must personally assess and undertake further inquiry, if necessary, for or in respect of determining the need for medical aid, in respect of injuries being found on the body of the accused, whether or not to have been so allegedly inflicted at the instance of any police officer(s) in custody, before ordering remand or granting bail. The learned magistrates should not shy away from monitoring investigations, and the cause of dispensation of convenient justice be effectuated in every sense, at least inside the courtroom, with scrupulous adherence to the principles of natural justice. The role of judicial academy in imparting rigorous training in aspects of court administration and craft, technical know-how, people dynamics besides law and its procedures, cannot be understated, particularly in light of the fact that direct recruits to the posts of Civil Judges/Judicial Magistrates (or Metropolitan Magistrates) do not mandatorily require prior practical experience in the field of law, whether in the form of actual practice of law or otherwise.

Custodial Violence or Torture is a brazen abuse of lawful authority in illegal manner and is mostly found to be exercised against the downtrodden, poor and non-influential persons. It ranges from a simple slap to repeated blows and infliction of grievous and non-grievous palpable injuries besides acts of harassment, intimidation, violation of bodily privacy and unlawful ways of preventing access to timely medical and legal assistance. Such violence is unbecoming of a police officer which is largely premised upon wrong assumptions of state powers and is sometimes found infested with personal ego and bias or otherwise as an instance caused by sheer zest to dispense roadside speedy justice by holding the accused as confirmed offender, and no doubt, by such acts, public trust as held by people upon the police does get shaken and is of the nature which compels innocent people to become criminals and anti‐social against the other members of the police force and the state in general. Police must realize that in matters of investigation, they only act as extended arms of the judiciary and cannot become the first and last authority to pronounce and inflict punishment. Since calling out loud every now and then, seeking police reforms from the day of passing of landmark judgement in Prakash Singh v. Union of India (2006) 8 SCC 1 till date, has become a cliché now, the need is to have a bonafide will to implement the law for a change to happen. The law must see the light of the day on the ground now.

The author, Mohit Kumar Gupta is an advocate at High Court of Delhi and District Courts-Delhi NCR. He can be reached at contact@blackrobeslegal.com for any questions or feedback concerning the write-up. The views expressed herein are personal in nature which do not constitute legal advice as such and is not intended to be understood as solicitation of work.