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ROLE OF JUDICIARY IN CUSTODIAL DEATHS

Updated: Dec 4, 2020

By

Dhaaranee, II year of B.A.,LL.B.(Hons.0 from Saveetha School of Law

The issues on policies related to the criminal justice system include drug legislation, juvenile justice; prison overcrowding, National Security, etc. In this particular article, I would like to discuss the Custodial death. The history of safeguard against arbitrary arrest and detention can be traced from the case of DK Basu vs State of West Bengal.


Article 22[1] of the Indian constitution prescribes minimum procedure requirements that must be included in any law enacted by the Legislature following any person may be deprived of his life and personal liberty.


Article 22 deals with two separate matters:

(1) a person arrested under the ordinary law of crimes ;

(2) a person detained under the law of Preventive Detention.


Custodial death is perhaps one of the worst crimes in a civilized society governed by the rule of law, this was stated by Justice D.R A.S.Anand. J. J. In the case of D.K Basu vs State of West Bengal [2]Supreme court has laid the rules to be followed in all cases of arrest or detention, surprisingly we see that yet there are many cases in which custodial death has taken place.


In the recent case of custodial death of father-son duo in sathankulam Tuticorin, P. Jeyraj and Bennix were allegedly tortured and kept in police custody the entire night and died after two days in police custody, they were arrested for keeping their mobile shops open, past permitted hours during lockdown to curb the spread of covid. In the present case, I would like to highlight how first-line defenders of law (police) are misusing their power and also regarding the magistrate supervision of the case. On the first hand, I would like to bring to notice that such crimes will not take place if we as citizens are aware of our fundamental rights, we must take measures to educate our fellow beings regarding the fundamental rights.


In the present case, FIR was lodged against the father-son duo and did not mention any heinous crime. It is very much clear that arrest can be made only during absolute necessity according to Section 41 of Crpc[3]. It is to be noted that while passing remand orders magistrate has to be extra cautious answering the conditions under Section 41(b) of Crpc[4] is fulfilled.


In the instant case, we can't only question the police force, there is a lot of Indian Judiciary has to answer in this case. The father and son would have been alive today had the magistrate applied his judicial mind and not acted mechanically accepting the plea of remand from the police officials. 273rd Report of Law Commission has recommended India to ratify United Nations Convention against Torture and pass a law to prevent torture against perpetrators.


The earlier court disposed of matter stating that matter is under serious consideration, now it's high time that centre enacts the law concerning the emergency for such laws in India, the further delay to the enactment of the anti-torture law will lead the uphill of inhuman activities. Recently extradition courts in the United Kingdom refused to send two persons to India to face trial, one of the grounds for rejection was that “ there is no proper and effective system for the protection of torture in the receiving state”.


The Prevention of Torture Bill was passed in Loksabha in the year 2010, later it has lapsed when the special committee was arranged to looking to the bill at Rajya Sabha. Thus, it is high time that the Centre has to come forward and enact the law against prevention of all forms torture and it should punish the public servants who inflict torture. As per the statistics in 2017 at least 100 persons would have died in police custody, in 2018 a total of 1727 people have died in police custody, but only 26 police officials have been convicted so far.


According to the official figures in the parliament by the Union Ministry of Home Affairs, 427 people died in police custody while 5049 people died in judicial custody between 2016 and 2018. Hence, it is high time for the Supreme Court to settle this issue of such lapse by subordinate courts and fix the responsibility. Supreme court should also issue a central government to consider and take steps to implement the amendments possibly through an amendment of Indian Evidence Act, the recommendation of 10th law commission of India to put the onus of any injury or death of an accused in police custody on the officer concerned since most of those at the receiving ended of torture in custody belong to financially and a socially weaker class of the society, it’s time for central government to enact prevention of torture bill and ratify the United Nations Convention against Torture.

[1]INDIAN CONST. art .22

[2] D.K. Basu vs State of West Bengal (1977 (1) SCC 416)

[3]Sec 41 of Crpc

[4] Sec 41. Clause (b) Crpc