Rights of Detainee vis-a-vis Duties of Police

The Police is designated as the executive civil force of a state which is entrusted with the duty of maintaining public order and enforcing regulations for the prevention and investigation of crime. While performing investigation related functions, Police has been entrusted with a certain discretion and authority for the purpose of convenience, expediency, etc. But this doesn’t mean their power is unfettered and can violate the rights of Citizens. The Duties of Police officers are in essence, restriction on their exercise of Powers, discretion, the authority with regard to Rights of Citizens who, directly or indirectly come in contact with Police, These checks on Power/Authority are necessary to keep the Police functionaries accountable, reduce the scope of Arbitrariness, negligence, misuse of discretion, ensure obedience to the rule of law and last but not least, uphold and protect the rights of Citizens.

But the recent facts and statistics show a different picture of Police in relation to detainees, in India.

•  As latest as on 14 March 2018, the Minister of State for Home Affairs in Rajya Sabha stated that the National Human Right Commission (NHRC) registered a total of 1,674cases of custodial deaths including 1,530 deaths in judicial custody and 144 deaths in police custody between 1 April 2017 and 28 February 2018. This implies 1,674 deaths in 334 days (11 months) i.e. over five deaths in custody daily. Uttar Pradesh topped the list, with 374 deaths reported in this period of under a year. 

• Timed with the International Day in Support of Victims of Torture, ‘India: Annual Report on Torture 2019’ said 1,606 of the deaths happened in judicial custody and 125 in police custody. Torture methods include hammering iron nails in the body, hitting private parts, urinating in the mouth, electric shock, pouring petrol or applying chili powder on private parts, beating while handcuffed, pricking body with needles, branding with a hot iron rod, beating after stripping, beating after hanging upside down with hands and legs tied, forcing to perform oral sex, beating with iron rods after the victim is suspended between two tables with hands and legs tied, and kicking the abdomen of a pregnant woman. ( As per the report published by the National Campaign Against Torture (NCAT)

•  Even during the early days of pandemic-lockdown, a horrific case of Custodial torture emerged in Tamil Nadu which reflected the brutality of Police. Jeyaraj, 59, and his son Beniks, 31, were arrested on June 19 for keeping their mobile phone shop open 15 minutes beyond permitted hours. The two men were allegedly subjected to brutal torture in police custody. At least 10 policemen arrested in connection with the death of these two, after alleged police torture. The incident sparked huge public outrage and a political row.

Grievance Redressal against custodial torture by Police:

Detainees or legal representatives of detainees can seek remedies, including compensation, before the High Courts and the Supreme Court under the Constitution of India for violations of fundamental rights. 

Relief can also be sought before the National and the State Human Rights Commissions set up under the Protection of Human Rights Act, 1993, but their recommendations are not binding on the respective governments.

Criminal complaints can be filed against the concerned officers for offences under the Indian Penal Code, 1860, but there is no mechanism for an independent investigation. As a result, police personnel often refuse to register first information reports against their colleagues.

The safeguard under Section 197 of the Criminal Procedure Code, 1973, is also often misused. This section requires prior sanction from the concerned government when a public servant, which includes a police officer, is accused of any offence committed in the discharge of official duty.

Lastly, since the police is a state subject under the Constitution, disciplinary proceedings and punishment for errant police officers such as suspension, removal, or deduction of salary are provided under respective state enactments.

In view of the absence of an effective framework for accountability against police misconduct, the Supreme Court in 2006, in the case of Prakash Singh v Union of India, directed states to establish Police Complaints Authorities at the state and district levels. Yet, these and various others have fallen on deaf ears and precious little has been done to comply with the binding directions.

Acknowledging the fact that the Indian Police system needs an immediate implementation of Police Reforms, we cannot ignore another fact that citizens need to be aware of their rights and limitations of Powers of police.

Article 14, 15, 16, which provide the scheme for the constitutional right to equality, apply to all citizens equally, even a detainee. So arbitrary or unreasonable or discriminatory actions cannot be taken by Police authorities against weaker sections of society.

Article 22, provides that no person shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult and to be defended by, a legal practitioner of his choice. The exception to the right is that it is not to be applied to aliens.

Article 21, which provides for the Right to life and liberty has been widened to include in its scope the rights of detainees/ arrested persons. The treatment of such people has to be humane and, in the manner, prescribed by law.

Supreme Court in Joginder Kumar v. State of UP, held that Articles 21 and 22(1) of the Constitution should be protected and recognized. It was held by a three-judge bench of the Supreme Court that an arrest cannot simply be made because a police officer has been conferred with this particular power.

In another landmark judgment in D.K. Basu v. State of West Bengal, (1997), it was held by the Supreme Court that custodial violence and death are violative of the Rule of Law. Further, a list of 11 guidelines in addition to the Constitutional and Statutory Safeguards was issued by the Court, which was to be followed in all cases of arrest and detention. Until Law is enacted for this purpose, the police persons are bound to follow these guidelines. However, substantial amendments have been enacted in Section 50-A of CrPC in the year 2006 based on this landmark decision.

Duties of Police Officers vis a vis important Rights of Arrested Persons.

i. Under Section 41 of CrPC wide powers are conferred on police to arrest, mainly in cognizable offences, without obtaining a warrant of arrest by the magistrate. . Except under the provisions of section 41, police cannot arrest any person without a warrant.

ii. Section 46 of Cr.PC envisages modes of arrest i.e. submission to custody, touching the body physically, or confining the body. In case the force is required, it should be no more than what is justly required and this section does not give a right to cause the death of a person, who is not accused of an offence punishable with death or with imprisonment for life.

Where a woman is to be arrested, unless the police officer is a female, the police officer shall not touch the person of the woman for making an arrest and arrest would be presumed on her submission to custody on oral intimation. After sunset and before sunrise, no woman can be arrested, except in exceptional circumstances and upon prior written permission from the local Magistrate.

iii. Section 49 of Cr.PC provides that there should be no more restraint than is justly necessary to prevent escape.

iv. Section 50(1) Cr.PC provides, “every police officer or other person arresting any person without a warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest.” Substantial amendments have been enacted in Section 50-A of CrPC in the year 2006 making it obligatory on the part of the police officer to follow the directions issued by the Supreme court in D.K. Basu case.

v. Section 50(2) of CrPC provides that any person arrested without a warrant shall be immediately informed of the grounds of his arrest, and if the arrest is made in a bailable case, the person shall be informed of his right to be released on bail.

vi. Section 54 of Cr.PC provides for compulsory medical examination by a medical officer. Female arrestees can only be examined by a female medical officer or registered medical practitioner. This is to ensure the good health of the person arrested during custody.

vii. The constitutional and legal requirements to produce an arrested person before a Judicial Magistrate within 24 hours of the arrest must be scrupulously observed.

viii. while after the arrest, a person shall have the right to consult and to be defended by the counsel of his choice; arrestee shall be entitled to free legal aid.

At present, many stories of arrests and intimidation by the state during the Farmers’ ongoing struggle have been making rounds (of-course not in mainstream national News channels). One story is about a 24year old Nodeep Kaur- a Dalit and Trade Union Activist who joined the protest against new agri-marketing laws in November and was arrested on January 12. According to her lawyer, the medical report shows there are wounds on her body and private parts, indicating that she was sexually assaulted in police custody. In no case, Police authorities can cause such assaults to a detainee in their custody. In fact, a freelance Journalist Mandeep Punia was also arrested and subject to torture in custody, the fact came out after he was released on bail.

Seeing the present instances of custodial violence and denial of the rightful investigation procedure, the question is, If the guardians of Citizen’s Rights only turn out to be the violators of their rights, whom to trust? Would it be wrong to conclude that Policing the police is the need of the hour?

By: Mansi Walia