Human Rights Violations in Police Custody

361 Pages·2011·6.24 MB·English

HUMAN RIGHTS VIOLATIONS
IN POLICE CUSTODY
Thesis submitted to
the Cochln University of Science & Technology
In partial fulfillment of the requirements for the Degree of
By
N. KKISHNA KUMAK
Supervising Teacher
Dr. G. SADASIVA N NAIR
PROFESSOR & FORMER DIRECTOR
SCHOOL OF LEGAL STUDIES
COCIDN UNIVERSITY OF SCIENCE & TECHNOLOGY
COCHIN UNIVERSITY OF SCIENCE AND TECHNOLOGY
SCHOOL OF LEGAL STUDIES
CO CHIN- 682 022
2004
Dr. G. Sadasivan Nair,
Professor and former Director,
School of Legal Studies,
Cochin University of Science and Technology.
GtertifitRte
Certified that to the best of my knowledge the thesis entitled NHuman
Rights Violations in Police Custody" is a record of bonafide research
carried out by N. Krishna Kumar, Research Scholar (Part-time)
(Registration Number 1857) under my supervision. I further certify that
this has not previously formed the basis of the award of any degree,
diploma, associate ship, fellowship or other similar title of recognition.
Cochin - 682 022 ~~Q(f0-? ..
16-9- 2004 Dr. G. Sadasivan Nair
Gterlifitale
Certified tlult the important research findings included in this Thesis,
Iulve been presented in a research seminar held at the School of Legal
Studies, Cochin University of Science and Technology on 23rd April 2004.
Cochin
16-09-2004
63J~
Signature of the candidate ounter signed by ,
Schoo 0 tu dies
Co chin University of Scietfft~offhnology
SCHOOL OF LEGAL STUDIES
CO'--"1IN UNIV'ERSITY OF SCIENCI
tu
'NO TECHNOLO<iY. lOQt&'!i• •
CONTENTS
Pages
ACKNOWLEDGEMENTS i-iii
INTRODUCTION 1-10
PART-l
mSTORICAL OVERVIEW
CHAPTER - 1 POLICE: A mSTORICAL PERSPECTIVE 11-50
A EVOLUTION OF THE CONCEPT OF POLICE
Police during Mauryan Period (320-548 AD):
Police Administration in South India
Administration under the Guptas
Police under Islamic Rulers
Police under Mughals and Marathas
British Period
Police Commission, 1860
Changes through the Indian Police Act of 1861
European Military Officers as Police Officers
Indian Police Commission 1902-03
Post-independence Period
B. KERALA POLICE-A HISTORICAL PERSPECTIVE
The Emergence of Police Force
Modernisation of Police
Police in Cochin State
Police in Malabar
Police in Travancore -Cochin State
Police in Kerala
CHAPTER - 2 A GLIMPSE OF THE mSTORY OF HUMAN RIGHTS 51- 92
VIOLATIONS BY POLICE
A EVOLUTION OF THE CONCEPT OF HUMAN RIGHTS
Evolution of the concept Human Rights in India
Period of 1200-1757 AD
British Period
Evolution of Constitutional Rights
B. HISTORY OF HUMAN RIGHTS VIOLATIONS IN POLICE CUSTODY
Police under Islamic and British Rule
Independence and after
Emergency Period
The First Emergency and its Continuance
The Second Emergency and its Prolongation
During the Janata Regime
In the Eighties
After Eighties
PART 2
PATTERN OF HUMAN RIGHTS VIOLATIONS
CHAPTER -3 CUSTODIAL VIOLENCE AND PERSECUTION IN LOCK-UPS 93-127
Illegal Detention and Manipulation of Records of Detention
Prolonged and Uncomfortable Detention
Torture
Custodial Death
Accommodation, Food, Medical Care and C!othing
Denial of Access to Counsel
Denial of Opportunity to Interact between Detainee and His Near and Dear Ones
CHAPTER -4 OTHER HUMAN RIGHTS VIOLATIONS:
THE UNATTENDED CATEGORIES 128-160
Arbitrary Arrest and Use of Excess Force
Use of Excess Force
Failure to Notify the Arrest
Unnecessary Handcuffing
Fictitious Memo of Arrest
Failure to Inform the Ground of Arrest
Arbitrary Denial of Bail
Using of Filthy Language and Character Assassination.
Fabrication of Evidence against Persons in Custody
CHAPTER -5 VICTIMS OF POLICE EXCESSES 161-190
Dalits and Adivasis
Women
Children
Politicians and Human Rights Activists
Weaker Sections of the Community
PART 3
CAUSES AND CURE
CHAPTER -6 HUMAN RIGHTS VIOLATIONS: CAUSATIVE FACTORS 191-227
Familial and Social Cause
Traditional Cause
Economic Cause
Corruption
Political Interference
Defects in Investigation System
The Existing Problems in Statutory Provisions and Judicial System
Lack of Judicial Vigilance
Lack of Supervision of Lock-ups
Defects in Recruitment and Training
Defective Promotion System
Vast Powers of Discretion
Stress and Strain
Statistical Guillotine
Lack of Public Co-operation
Need of Interrogation Rooms
Psychological Reasons
CHAPTER -7 ENDEAVORS TO PREVENT HUMAN RIGHTS VIOLATIONS 228-269
A. JUDICIAL RESPONSE
Right against Arbitrary Arrest and Detention
Right to be Informed of the Ground of Arrest
Right to Counsel at the Time of Police Interrogation
Right against Capricious and Unnecessary Handcuffing
Right Against Torture and Custodial Death
Custodial Rights of Women
. Right to Compensation
B. HUMAN RIGHTS COMMISSIONS
National Human Rights Commission
State Human Rights Commission
C. WOMEN'S COMMISSION
D. COMMISSIONS OF INQUIRY
E. VOLUNTARY ORGANISATIONS
F. WORK OF INTERNATIONAL ORGANISATIONS
G. ROLE OF MEDIA AND CINEMA
H. OFFICIAL CONDEMNATION OF CUSTODIAL VIOLENCE
I. HUMAN RIGHTS ACTIVISTS
CHAPTER - 8 COMBATING HUMAN RIGHTS
VIOLATIONS: REMEDIAL MEASURES 270-314
Necessity for Elimination of Corruption in the Police System
Political Interference- a Hurdle on Police
Need for the Increase of Manpower
Modem Technology in Scientific Investigation
Electronic Recording of Interviews
Polygraph Test
Need for Judicial Vigilance
Mobile Judicial Unit
Joint Effort of Central and State Government
Precautions to be Taken in Recruitment and Training
Human Rights Oriented Initial Police Training
In-service Training on Human Rights for Police Personnel
Remedial Measures against the Arbitrary Use of Police powers
Public Co-operation
Re-structuring the Police Station
Custody Records
Central Reception Facility for Arrestees
Need for Decent Clothing
Professionalism in Police
Need of a Code of Conduct
Relevant Amendments to be Made
Redressal Mechanism
Public Grievance Cells
District Complaints Boards
State Security Commission
Civilian Control (Custodial Justice Committee for the Supervision of Places of Detention)
Withholding the Legal Standards in Extra-ordinary Circumstances of Arrest and
Transparency in Police Functions
CHAPTER - 9 CONCLUSION AND SUGGESTIONS 315-334
APPENDICES 335-421
INDEX OF CASES 422-425
STATUTES REFERRED 426
ABBREVIATIONS 427-429
SELECT BIBLIOGRAPHY 430-438
INTRODUCTION
Human rights are the basic rights of every individual against the
state or any other public authority as a member of the human family
irrespective of any other consideration. Thus every individual of the society
has the inherent right to be treated with dignity in all situations including
arrest and keeping in custody by the police. Rights of an individual in police
custody are protected basically by the Indian Constitution and by various other
laws like Code of Criminal Procedure, Evidence Act, Indian Penal Code and
Protection of Human Rights Act. These rights are also recognized by various
international documents like Universal Declaration of Human Rights,
International Covenant on Civil and Political Rights, Convention against
Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and
Body of Principles for the Protection of All Persons under Any Form of
Detention or Imprisonment. In spite of these international and national legal
standards for the protection of rights of persons in police custody, human
rights violations in police custody are endemic in India and are tarnishing the
image of India abroad. Since the police play a vital role in a democracy not
only with respect to maintenance of law and order but also in dealing with the
rapid increase of crime rates in the criminal justice system, policy of police
must strive to attain objectives like fairness, consistency, tolerance of minority
views and other values which are inherent in a society. Being the visible
symbol of state authority, police should see that their actions are not affecting
the liberty and freedom of individuals and not infringing the basic human
rights values of the suspects in custody, while fulfilling the avowed objectives
of prevention and investigation of crimes.
There are frequent instances where the police, who are entrusted with
the duty to enforce law and order, are violating the human rights.1 It is an admitted
fact that when the police interrogate suspects in a crime, they employ third-degree
methods. It includes torture either by not recording the arrest or deprivation of
I Jagannath Mohanty, "Bases and Sources ofHwnan Rights", Human Rights Education (2000), p. 15.
liberty in the guise of a prolonged interrogation. Experience shows that during the
course of investigation, worst violations of human rights take place?
Police is, no doubt, under a legal duty and has legitimate power to
arrest a criminal, to interrogate him during the investigation of an offence but
it must be remembered that the law does not permit use of third degree
methods and torture of accused in custody during interrogation and
investigation of the crime.3
Conceptualisation
The term 'police' are defined as the civil force of a State,
responsible for maintaining public order.4 The term 'police officer' would
include any member of the police force appointed or deemed to be appointed
under the Kerala Police Act. The term should not be construed in so wide a
sense as to include persons on whom only some of the powers exercised by the
police are conferred.5 It would also include a special or an additional police
officer appointed under Sections 216 and 227 of the Kerala Police Act.
2 D.K. Basu v. State of West Bengal, with Ashok K. Joshi v. State ofU.P., A.I.R. 1997 S.C. 610, p. 617.
3 Id., p. 62l.
4 M.C.Desai (Ed.), Venkata Ramaiya's Law Lexicon with Legal Maxims, Vol. I (1996), p.92l.
S M.C. Desai (Ed.), Venkata Ramaiya's Law Lexicon with Legal Maxims, Vol. III (1996), p.1847.
The expression 'police officer' used in Sec 523, of Criminal Procedure Code is to be construed
strictly and to include only police officers properly so called. The expression is not to be construed
liberally so as to include officers of other departments on whom certain powers of a police officer
may have been conferred for certain purposes. The expression will not include customs officers
though the latter have been invested with some powers of a police officer. Assistant Collector of
Customs v. Tilakraj Shiv Dayal, 1969 Delhi 301, p. 302.
6 Section 21 reads: "The District Magistrate may, whenever and for such time as he may consider it
necessary to do so for the preservation of the public peace or public safety, by public notice or by
order directed to individuals, prohibit-
(i) the carrying of swords, spears, bludgeons, guns or other offensive weapons in any public place;
(ii) the carrying, collection and preparati09n of stones or other articles intended to be used as
missiles, or of instruments or means of casting or of impelling missiles;
(iii) the exhibition of persons, corpses, figures or effigies in any public place; and
(iv) the public utterance of cries or slogans, singing of songs or playing of music."
7 Section 22 reads: (1) " The District Magistrate may, whenever and for such time as he may
consider necessary, by public notice or by order directed to individuals, prohibit the delivery of
public haran-gues, the use of gestures or mimetic representation and the preparation, exhibition or
dissemination of pictures, symbols, placards or any other objects or thing, which-
(i) may be of a nature to outrage morality or decency: or
(ii) are likely, in the opinion of the Magistrate, to inflame religious animosity or hostility between
different classes or to insight to the commission of an offence, to a disturbance of the public peace,
or to resistance to law or lawful authority.
(2) No prohibition under this section shall remain in force for more than fifteen days unless the
Government, by notification in the Gazette, otherwise direct."
2
The tenn 'custody' is defined neither in procedural nor in
substantive laws. The word custody means protective care.8 The expression
'police custody' as used in sec. 27 of Evidence Act does not necessarily mean
formal arrest. It also includes some fonn of police surveillance and restriction
on the movements of person concerned by the police.9 Thus a man may be in
custody without having been fonnally arrested. Custody includes a state of
affairs in which the accused can be said to have come into the hands of the
police or have been under some form of police surveillance or restriction on
the movements by the police.
10
Courts have extended the meaning of the tenn 'custody' in its strict
sense to include a situation where the detenu may have been called to the police
station for the purpose of interrogation and from the time that a person is placed
under arrest. In other words, custody commences from the moment the person
affecting the custody exercises some legally physical control over another.
1 1
The accused even after his remand to judicial custody can, subject
to his right to silence, be questioned by the police with the pennission of the
Magistrate in any place and manner which do not amount to custody in the
police.12 Police custody commences when a Police Officer arrests a person by
actually touching or confining his body or when the accused submits to the
custody by word or action or offers to give infonnation leading to discovery.
13
8 R.E. AlIen (Ed.), Concise Oxford Dictionary of Current English (VIII Edn.) (1990), p. 286.
Custody according to shorter Oxford Dictionary, means 'safe keeping, protection, charge, care,
guardian ship', M.C.Desai (Ed.), Venkata Ramaiya's LawnLexicon with Legal Maxims, Vol. I
(1996), p. 574.
9 Gurdial Singh v. Emperor, A.I.R 1932 Lah. 609, p. 611. In fact, actual detention or confmement is
not essential, suffice it will be if the accused is submitted to custody by action or by word of the
police., N.K. Jain, "Custodial Crimes -An Affront To Human Dignity", Human Rights Year Book
(2000), p. 64.
10 Mihir Adhikary v. State, 1983 Cri. L.J.(Cal) 1559.
11 Rama Pal, "Tackling custodial crimes -an over view", Human Rights Year Book (2000), p. 100.
12 The word 'custody' referred to in Sec. 344 (Sec. 309, new) of the Code of Criminal Procedure is
always jail or judicial custody and can never be police custody. M.C.Desai (Ed.), Venkata
Ramaiya's Law Lexicon with Legal Maxims, Vol. I (1996), p. 573.
13 Gurbaksh Singh v. State ofP unjab, 1980 (2) S.C.C. 565: 1980 Cri. L.J. 1125.
3