COMPENSATION FOR CUSTODIAL DEATH AND CONTRAVENTION OF HUMAN RIGHTS BY STATE.
“The biggest road block to action on genocide and other human rights crimes is ignorance. Most people just don’t know that such things are happening and often. If they have a vague Idea what is happening there is nothing that can be done to stop there crimes.”- John Prendergast
According to National Human Rights Commission, There were 440 cases of alleged fake encounters in the country during 2002-2008. Most of the happened in state of UP(391), Rajasthan(33), Uttranchal(31). From 2009-2010 to February states with high number of cases were UP(158), Manipur(62), Assam(52), West Bengal(35) and Jharkhand(30).
Every deprivation of liberty or Physical restraint is not arrest. Only the deprvation of liberty by legal authority or at least by apparent legal authority. In a professionally competent and adapt manner amongst to arrest. Further, when the restraint is total and deprivation of liberty is complete that would amount to arrest, thus arrest means ‘ apprehension of a person by legal authority resulting in deprivation of its liberty’.
The body of principles for the Protection of all persond under any form of detention or imprisonment,1988(united nations) defines arrest as.
“The act of apprehending a person for the alleged commission of an offence or by the action of an authority”. In one of the publication of united nations programme on crime prevention and criminal justice, arrest has been defined as “the act of depriving a person of his liberty under government authority for the purpose of taping that person into detention and changing the person with a criminal offence”.
In state of Haryana v. Dinesh Kumar The apex court observed that the expression “arrest” has neither been defined in the code of criminal procedure nor in the Indian Penal Code or any other enactment deaing with criminal offence. The only indication as to what would constitute arrest may perhaps be found in sec.46 of the code which describes the mode in which arrest are to be made. The court cited the meaning of arrest given in Halsburg’s law of england. The word arrest when used in ordinary and natural sense, means the apprehension or restraint or the deprivation of one’s liberty. The question wheather the person is under arrest or not depends not on the legality of the arrest, but on wheather he has been deprived of his personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences. An arrest consist taping into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. The essential element to constitute an arrest in the above sense are that there must be an intent to arrest under the authority accompained by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested.
Instances have came to the notice where the police has arrested a person without warrant in connection with the investigation offence without recording the arrested person has been subjected to torture to extract information for the purpose of investigation under such circumstances injury caused on the body of the arrested has sometimes resulted in his death. Custodial death.
In Joginder Kumar v. State of U.P apex court ruled that an arrested person being held in custody is entitled, If he so requested, to have one friend relative or other person interested in his welfare told that he has been arrested and where he has being detained. The police officer shall inform the arrested person when he is bought to the police station of this right. An entry should be required to be made in the diary as to who was informed of the arrest. The Magistrate is obliged to satisfy himsef that these requirement complied with.
It emerges from the above discussion that arrest is not a “must” in a conizable offence. However, the Allahabad High Court(a full bench of 5 judges) has held that on disclosure of a cognizable offence, the arrest for the offences is a must.
The frequent instances of police atrocities and custodial deaths have prompted the Supreme Court to issue the following directions. In D.K.Basu v State of West Bengal to be followed in all the cases of arrest or detention till legal provision are made. There requirements are in addition to the constitutional and statutory safeguards and do not deter act from the various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee. The directions are:-
- The police personal carrying out the arrest and handling the interrogation should bear an accurate and clear identification the name tags with their designation.
- The police officer carrying out the arrest shall prepare a “memo of arrest” at the time of arrest and such memo must be attested by at least one witness (a member of arrestee’s family or a respectable person from the locality from where arrest is made). It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
- A person who has been arrested/detained shall be entitled to have one friend/related/other person know to him or having interest in his welfare being informed as early as possible.
- The time of arrest and place of arrest and venue of custody of an arrestee must be notified by the police where the next friend/relative of arrestee lives outside the district/town through the legal aid organisation in the district and the police station of area concerned telegraphically with a period of 8-12 hours after the arrest.
- The arrestee must be aware of his right to have someone informed of his arrest/detention as soon as he is put under arrest/detained.
- An entry must be maintained in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the arrestee who has been informed of the arrest and the name and particulars of the police officials in whose custody the arrestee is.
- The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor in juries, if any present on his/her body. Must be recorded at that time. The “Inspection Memo” must be signed by the arrestee and the police officer and its copy provided to arrestee.
- The arrestee should be subjected to medical examination by a trained doctor every 48 hours, during his detention in custody by a doctor on the pannel of approved doctors appointed by, health seruices of the state/U.T, the director should prepare such a panel for all tehsils and districts as well.
- Copies of all document including the memo of arrest should be sent to the area magistrate of his record.
- The arrestee may be permitted to the meet his lawyer during interrogation, though not throughout the interrogation “Torture” is the systematic and delibrate inflication of accute pain in any form by one person on another or on a third person in order to accomplish the purpose, the former against the will of the latter [International Legal Expert] in D.K.Basu case (above). The apex court observed “custodial violence”(torture, rape, death in police custody lock-up) is a matter of deep concern. It infringes Article 21 of the constitution as well as Basic human rights and stripes a blow at rule of law”. it may be noted that these is no specific provision in the code against custodial torture.
In Sunil Batra v. Delhi Administration, The apex court noted that the right to interrogate the detenes, culprit or arrestees in the interest of the nation must tape right of an imprisoned person is the integrity of his physical person and mental personality. The court hurled against the “bar fetters” and “solitary confinement”(unless it is absolutely necessary to do so).
In Prem shankar v. Delhi Administration, It condemened the “hand cuffs” In chaining the prisnors. Even where, in extreme circumstances(viz., the accused is dangerous or desperate). handcuffs become necessary the escorting officer must record the reasons for doing so.
In Sheela Barse v. State of Maharashtra, The apex court took note of the custodial violence to women lodged. In police lock-up it directed that there should be lock-ups in good localities exclusively for female suspects. Further, the interrogation of the female suspects should be carried only in the presence of female police officers.
In D.K.Basu Case(above). The apex court noted that right to interrogate the culprits or arrestees in the interest of the nation must tape procedure over an individuals right to personal liberty(Salus populi/ republical Supreme lax- safety of the people/ state in the supreme law). the state’s action however, must be “right just and fair”. Interrogation though essential must be on scientific principles and third degree method are totally impermissible. To check the abuse of police power transparency of public action and accountability are two possible safeguards. The police force need to be infused with basic human values and made sensitive to the constitutional ethos. With a view to bring in transparency the presence of counsel of the arrestee at some points of time during interrogation may defer the police from using third-degree methods. Compensation is a tangible expression of the states sympathy and concern towards the victim of the abuse of power. Under sec.357(3) of the code. The courts can award unlimited amount of compensation to the victims at the time of passing judgment conviction. This provision is not ancillary to other provision can not be invoked for awarding compensation to the victim. Where the accused person are acquitted of the charge on benefit of doubt or on any technicalities of law. It is only when the accure is convicted that the victim can get compensation.
There is no other express provision in the code or the constitution for grant of compensation for violation of a fundamental right to the life or personal liberty. The supreme court has however, judicially evolved a ‘right to compensation’ in such cases while the remedy of compensation flows from the significant content of article 21 of the constitution. The power to award compensation flows from article 32/226.
Lastly, the criminal Justice system is a crucial part of judicial system of our country which was instituted to provide justice to the innocent and punishment to the guilty as implicit in the statement by the Supreme court that Even Convicts, prisoners and under trials have right under article 21 and only such restraints can be imposed as permitted by law.
By: Name:-Dharam Pratap Singh, AMU