The fury over the death of George Floyd, who died in police custody in the USA, has finally reached India. The custodial deaths of two men in Tamil Nadu have sparked great outrage. It has finally brought to light one of India’s biggest issues – custodial deaths.
Recent Incident in India
Police arrested Jayaraj and his son Benicks, on June 19. They arrested them for keeping their shop open for 15 min beyond the permitted hours. Later, the men died in the hospital. There were also alleged reports of brutal torture and sexual violence by the police. Not only this but they also allegedly tried to hide their wounds from the Magistrate.
The State Government has suspended the three accused police officers. They may very soon face murder charges. The outrage has forced the State government into action, who have transferred the case to the CBI. There are also reports of police trying to hide and side-track the investigation. The Madras HC has also received a report from the Magistrate. Based on this, they have initiated contempt proceedings against some police officers. These include the Deputy Superintendent of Police, Additional Deputy Superintendent of Police. The report also names a police constable for trying to derail the investigation.
Investigation Procedure of Custodial Deaths
The recent news begs one important question. What is the procedure for the investigation of custodial deaths? In cases of custodial death, evidence tampering is very common. So, CrPC gives the Magistrate powers to investigate into the incident immediately. Section 176(1) and 176(1A) of the CrPC provide for the procedure of investigation by the Magistrate. This procedure applies to any custodial death, torture, or rape. Section 176(5) states that the Magistrate must forward the body of the deceased to a Civil Surgeon. The Magistrate must do this within 24 hours of the inquiry.
The Supreme Court in the case of Lalita Kumari vs State of Uttar Pradesh did make it compulsory to lodge an FIR. The Court had stated that it is compulsory to lodge an FIR if there is evidence of a non-cognizable offense. Yet, despite this judgment, FIRs are barely filed in cases of custodial deaths.
Law Commission Report
The 152nd Law Commission Report studied the custodial crimes in detail in India. The report concluded that current laws were not enough. The report suggested that the legislature must incorporate a new section in the CrPC. Furthermore, it suggested that they must insert Section 154A. This section stated that any person or NGO must have the right to present a petition to the Session Judge in cases of custodial death. They can use this section when the police refuse to lodge an FIR. However, the legislature is yet to implement the recommended section.
Powers of Magistrate to Investigate
The CrPC confers adequate powers to the Magistrate to investigate. But compliance is dismal. A PIL filed in the Supreme Court in January 2020 throws more light on this. Only 20% of custodial deaths/rapes were met with action. Out of 827 cases of death, the Court ordered a judicial inquiry in only 166 cases. The Court passed notices to all States/UT’s to ensure the implementation of Section 176(1A). Yet, the order remains largely unfulfilled. Even in the recent case, the Madras High Court was forced to take suo moto cognizance. The High Court had to pass orders to the Judicial Magistrate to inquire into the case.
The National Human Rights Commission has also been proactive. The Commission has realized that the law needs ancillary help. It passed guidelines to help the proper investigation of custodial deaths. The guidelines have laid out several steps for the investigation. The Magistrate has to follow these steps during the investigation. The guidelines are more detailed than the Sections under the CrPC. These guidelines can definitely help in the investigation of custodial deaths. The NHRC has also required for cases of custodial deaths to be completed within 2 months.
Custodial crimes continue to plague India. With excess powers given to the police, it has become easy to get away after committing the crime. Despite the existence of laws to keep police power in check, the implementation of the law is lacking. What is needed is the major overhauling of the existing system. The law needs to hold the police accountable for their actions.
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