Custodial Violence

Custodial Violence
If you once forfeit the confidence of

our fellow citizens you can never regain
their respect and esteem.
It is true that
you can fool all the people some of the time,
and some of the people all the time,
but you cannot fool all the people all the time."
: Abraham Lincoln.
Synopsis
1 Introduction;
2 Custodial Death Is Worst Kind Of Crime;
3 Meaning Of Torture;
4 Power Of Investigation Do Not Authorize Torture;
5 Evil Effects Of Custodial Violence;
6 Compulsory Medical Examination Of Arrested Persons:
7 Police Bound To Explain Fate Of The Person Detained By It;
8 Liability Of State;
9 Registration Of Case Against Police;
10 Nature Of Public Law Remedy;
11 Effect Of Acquittal;
12 Complaint By Accused In Prison;
13 Case To Be Registered In Case Of Encounter Death;
14 Magisterial Enquiry;
15 Difficulty Of Proving The Offence;
16 Burden Is On The Person Having Custody;
17 Courts To Show Sensitivity;
18 Invocation Of Writ Power For Remedy;
19 Standard Of Proof Required;
20 Tackling Problem Of Custodial Violence;
21 Victim Entitled For Compensation;
22 Quantum Of Damages; and
23 Civil Remedy Is Not Barred.
1 Introduction:
Self-preservation is the most pervasive aspect of sovereignty. To
preserve its independence and territories is the highest duty of every nation
and to attain these ends nearly all other considerations are to be

subordinated.1 Torture is the inquiry after truth by means of torment. 2 No one
shall be subjected to torture or to cruel, inhuman or degrading treatment or
punishment.3 Custodial violence, including torture and death in the lock ups
strikes a blow at the Rule of Law, which demands that the powers of the
executive should not only be derived from law but also that the same should
be limited by law. Custodial violence is a matter of concern. It is aggravated
by the fact that it is committed by persons who are supposed to be the
protectors of the citizens. It is committed under the shield of uniform and
authority in the four walls of a police station or lock-up, the victim being
totally helpless. The protection of an individual from torture and abuse by the
police and other law enforcing officers is a matter of deep concern in a free
society.4 There is an inbuilt guarantee in the Constitution of India against
torture or assault by the State or its functionaries. 5 Government as the
omnipotent and omnipresent teacher teaches the whole people by its example.
If the Government becomes a law breaker, it breeds contempt for law, it
invites every man to become a law into himself.6
The police are under a legal duty and have legitimate right to arrest a criminal
and to interrogate him during the investigation of an offence but the law does
not permit use of third degree methods or torture of accused in custody
during interrogation and investigation with a view to solve the crime. End
cannot justify the means. The interrogation and investigation into a crime
should be in true sense purposeful to make the investigation effective. By
torturing a person and using third degree methods, the police would be
accomplishing behind the closed door what the demands of our legal order
forbid. No society can permit it.7
1 Abdul Karim v. State of Karnataka, (2000) 8 S.C.C. 710 : 2001 Cri LJ 148.
2 Torture by Edward Peters.
3 Article 5 of the Universal Declaration of Human Rights in 1948
4 D. K. Basu v. State of West Bengal, 1997 (1) SCC 416
5 Munshi Singh Gautam and others v. State of M.P., AIR 2005 SC 402; 2005 SCC (9) 631
6 Justice Brandies in (1928) 277 U.S. 438, quoted in (1961) 367 U.S. 643
7 S.Krishnamoorthy and another v. State of Tamil Nadu, (2008) 2 MLJ (Cr) 1217
The police, with their wide powers are apt to overstep their zeal to detect
crimes and are tempted to use the strong arm against those who happen to fall
under their secluded jurisdiction. That tendency and that temptation must in
the larger interest of justice be nipped in the bud. 8 On many occasions, when
law-breakers are arrested, they make wild allegations, and shout from roof
top 'police brutality' or 'customs brutality', which are nothing but cat-calls. 9
No person who supports human rights can support terrorism which results in
a grave violation of human rights of innocent people. A terrorist who violates
human rights of innocent citizens must be punished, but his human rights
should not be infringed except in the manner permitted by law.10 But it needs
to be carefully examined whether the allegations of custodial violence are
genuine or are sham attempts to gain undeserved benefit masquerading as
victims of custodial violence.11
2 Custodial Death Is Worst Kind Of Crime:
Torture in custody flouts the basic rights of the citizens
recognised by the Indian Constitution and is an affront to
human dignity.12 Custodial crime is a species of man-made
malady which is growing in alarming proportions. By resorting
to such excesses, the law enforcers are only creating a congenial
atmosphere for fostering terrorism. No civilized society can afford to support
this transformation of man into a beastly animal. The death in police custody
is perhaps one of the worst kind of crimes in a civilised society, governed by
the rule of law and poses a serious threat to an orderly civilised society.
Torture in custody flouts the basic rights of the citizens recognised by the
Indian Constitution and is an affront to human dignity.13 "Custodial torture" is
8 Dagdu v. State of Maharashtra (1977) 3 SCC 68: AIR 1977 SC 1579
9 Roshan Beevi and another v. Joint Secretary, Government of Tamil Nadu, 1984 Cr.L.J. 134 Mad.
10 Speech of the Chairman of the National Human Rights Commission at the National Foundation for Law and
Social Justice, at Kochi, organized by Justice V. R. Krishna Iyer,
11 Shakila Abdul Gafar Khan v. Vasant Raghunath Dhoble, 2003 (7) SCC 749 ; Munshi Singh Gautam v. State of
M.P., 2005 (9) SCC 631
12 Dalbir Singh v. State of U.P., 2009 Cr.L.J. 1543 SC

13 State of M.P. v. Shyamsunder Trivedi and others, AIR 1995 SCW 2793; (1995)4 SCC 262
a calculated assault on human dignity and whenever human dignity is

wounded, civilisation takes a step backward - flag of humanity must on each
such occasion fly half-mast.14 Nothing is so dehumanising as the conduct of
police in practising torture of any kind on a person in their custody. The
police image in the estimation of the public has badly suffered on account of
the prevalence of this practice in varying degrees over the past several
years.15 Denying a person of his liberty is a serious matter. 16 It is more
heinous than a game keeper becoming a poacher.17
Torturing suspects with a view to extorting information from them, is a crude,
barbarous and reprehensible method of investigating and detecting crime.
Those who are entrusted with the duty of enforcing the law, must learn to
obey the law. In police investigation as in other matters, the end does not
justify the means; the means are as important as the end 18. Death in police
custody must be seriously viewed for otherwise we will help take a stride in
the direction of police raj. It must be curbed with a heavy hand. 19 Torturing, a
person and using third degree methods are of medieval nature and they are
barbaric and contrary to law. The police would be accomplishing behind their
closed doors precisely what the demands of our legal order forbid. 20 There is
an inclination on the part of some of the supervisory ranks in the police
hierarchy to countenance this practice in a bid to achieve quick results by
short-cut methods.21
3 Meaning Of Torture:
"Torture" has not been defined in the Constitution or in other penal laws.
'Torture' of a human being by another human being is essentially an
14 D.K.Basu v. State of W.B., AIR 1997 SC 610; (1997) 1 SCC 416; 1997 Crl.L.J.743.
15 4th Report of June 1980 of the National Police Commission
16 Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri LJ 1981
17 Bhagwan Singh and another v. State of Punjab, AIR 1992 SC 1689; 1992-SCC-3-249
18 Public Prosecutor v. Shaik Ibrahim, 1964 (2) Cr. LJ 636
19 Gauri Shanker Sharma etc., v. State of U.P. etc., AIR 1990 SC 709, 1990-SCC-Supp1-656
20 Bhagwan Singh & Am. vs. State of Punjab, 1992 (3) SCC 249
21 4th Report of June 1980 of the National Police Commission
instrument to impose the will of the 'strong' over the 'weak' by suffering. The
word torture today has become synonymous with the darker side of human
civilisation.22 Torture is anguish squeezing in your chest, cold as ice and
heavy as a stone paralyzing as sleep and dark as the abyss. Torture is despair
and fear and rage and hate. It is a desire to kill and destroy including
yourself.23
4 Power Of Investigation Do Not Authorize Torture:
In a society, where the rule of law is paramount and when there is no
evidence to suggest that a person resisted the police from arresting him, no
force whatever could be justified in the process of taking him into custody.24
Worst violations of human rights take place during the course of
investigation, when the police with a view to secure evidence or confession
often resort to third degree methods including torture and adopts techniques
of screening arrest by either not recording the arrest or describing the
deprivation of liberty merely as a prolonged interrogation. 25 Persons detained
in police custody have as much right to life as ordinary citizens. 26
Interrogation does not mean inflicting injuries. It should be in its true sense
and purposeful namely to make the investigation effective. Torturing a person
and using third degree methods are of medieval nature and they are barbaric
and contrary to law.27 The police must not exceed the powers, which have
been entrusted to them and they must duly perform the duties which have
been laid upon them. If they do not do so, they must answer it.28
5 Evil Effects Of Custodial Violence:
Police excesses and the maltreatment of detainees/under trial prisoners or
suspects tarnishes the image of any civilised nation and encourages the men
23 Adriana P. Bartow
24 Dr.Ranjit Reang v. State of Tripura and others, 2008 Cr.L.J. 4607 Gau.
26 Basant Singh v. State of Punjab and others, 2008 Cr.L.J. 4455 P&H
in 'Khaki' to consider themselves to be above the law and sometimes even to

become law unto themselves. Unless stern measures are taken to check the
malady, the foundations of the criminal justice delivery system would be
shaken and the civilization itself would risk the consequence of heading
towards perishing.29 If the power of the police to kill anybody and attribute it
to self-defence is accepted, then Article 21 of the Constitution of India would
become meaningless. In case of any death of a citizen occurring during the
course of encounter or a shoot-out or exchange of fire or in police custody, it
has to be registered as a case of culpable homicide.30
6 Compulsory Medical Examination Of Arrested Persons:
It is well known that custodial violence is widely prevalent in India.
Scientific investigation is not followed by many police officers. This
situation has been created by the overburden of work and lack of scientific
training of the police officers. The Supreme Court has, in many cases held
that custodial violence is the worst form crime against human being. In many
cases, injury on the accused could have been caused in the occurrence or in
some cases by the police officers. Because of the over burdening of the work
in the Magistrate Courts the work of noting of the injuries available on the
accused persons by the Magistrate has become a mere ritual. This guideline is
adhered in practice only when the accused person is a highly informed person
and in such cases, the injuries are noted by the Magistrates. Further, even to
exercise such right the presence of an advocate is necessary.
When the accused is arrested by the police for the first time, the time
when he would be produced before the Magistrate is not certain and when
time is not certain the presence of lawyer to assist the accused cannot be
ensured. So, the right of the accused to file a petition before the Court to note
down the injuries on him cannot be utilised. Further, the accused would also
be under constant threat of injury to him since he is produced before the
Magistrate only by the police officer who arrested him. To avoid such kind of
infraction of human rights, now, Sec.54 Cr.P.C. has been substituted with new
provision, By this amendment, now, it is compulsory for the police officer
30 Andhra Pradesh Civil Liberties Committee rep. by its General Secretary v. State of A. P. & another, 2008 Cr.L.J.
402 A.P.
who makes arrest to produce such person immediately before the medical
officer.
As per the amended Sec.54 of Code of Criminal Procedure, 1973
immediately on the arrest of anyone, whether that person is having injury or
not, he has to be produced before the medical officer. On his production, the
Medical Officer employed by the Government(Central or State) has to
examine the body of the accused and give certificate as to the injuries
available on his body at the time of production before him. If injuries are
available on his body, it should be marked by him and after such marking,
copy of the same has to be given by that medical practitioner to the arrested
person. In case such injuries not available and thereafter, some injuries are
available it is easy for the Court to fix responsibility for such injuries
available on the body of the accused person.
In case the arrested person is a female, to safeguard her modesty, she
shall be examining by a female Medical Officer. If any medical officer under
the employment of the State or Central is not available, the arrested person
could be examined by a registered medical practitioner and this examination
has to be done soon after arrest is made. So, on the one hand the effect of
arrest has been qualified by many safeguards especially based upon the
punishment provided (now the discretion has been effectively regulated for
the offences for which maximum punishment provided is 7 years of less) and
on the other hand, the custodial violence has been made practically
impossible by mandatory examination by the medical officer immediately on
arrest. This restriction enables the accused to claim compensation effectively
in case his human rights are violated by the police officers.
7 Police Bound To Explain Fate Of The Person Detained By It:
If a person is in police custody then what has happened to him is
peculiarly within the knowledge of the police officials who have taken him
into custody.31 In such cases the following are the legal position:
a no crime can be registered under Section 307 of IPC, against a
person killed in an encounter.
b Whenever a person is found dead, out of bullet injuries in an
encounter, with the police,
i
ii
if a specific complaint is made, alleging that any identified

individual had caused the death of such person, an independent
FIR shall be registered in it.
in the absence of any complaint, the procedure prescribed under
Section 176 of the Cr. P.C. shall be followed, without, prejudice
to any investigation, that may be undertaken by the police itself.32
8 Liability Of State:
Enjoyment of the basic human rights are the entitlement of every citizen, and
their protection the obligation of every civilised State. They are inherent in
and essential to the structure of society. They do not depend on the legal or
constitutional form in which they are declared. 33 It is an obligation of the
State to ensure that there is no infringement of the indefeasible rights of a
citizen to life, except in accordance with law, while the citizen is in its
custody.34 State is duty bound to protect the fundamental rights of the persons
lodged in prison. Infliction of injuries on the person in custody amounts to
violating his fundamental right under Art.21 of the Constitution of India. 35
State is responsible for the tortuous acts of its employees. 36 There is a
commitment by the Crown that those who in the three branches of the
Government exercise its functions, powers and duties will observe the rights
that the Constitution affirms.37 The State must be held responsible for the
unlawful acts of its officers and it must repair the damage done to the citizens
by its officers for violating their indivisible fundamental right of personal
liberty without any authority of law in an absolutely high-handed manner.38
Where the Constitutional right is one guaranteed by the State, it is against the
State that the remedy must be sought if there has been a failure to discharge
402 A.P.
33 Simpson v. Attorney General (Baigent's case) 1994 NZLR 667,

34Peoples' Union for Democratic Rights vs. Police Commissioner, Delhi Police Headquarters, 1989 (4) SCC 730.
35 Ravindra Nath Awasthi v. State of U.P. and others, 2009 Cr.L.J. (NOC) 823 All.
36 Saheli, A womens Resources Centre v. Commissioner of Police, Delhi and others, AIR 1990
SC 513; (1990)1 SCC 422; (1989)1 MLJ(Crl)672
37 Simpson v. Attorney General (Baigent's case) 1994 NZLR 667,
38 Dhananjay Sharma vs. State of Haryana, 1995 (3) SCC 757
the constitution obligation imposed.39 When a person facing threat from many
persons is arrested and put in prison, the State should take effective measures
to protect him in prison from his enemies. In case he is murdered by his
enemies inside the prison, the State is liable to pay compensation to his
family members.40
The defence of sovereign immunity being inapplicable and alien to the
concept of guarantee of fundamental rights, there can be no question of such
a defence being available in the constitutional remedy. It is this principle
which justifies award of monetary compensation for contravention of
fundamental rights guaranteed by the Constitution, when that is the only
practicable mode of redress available for the contravention made by the State
or its servants in the purported exercise of their powers, and enforcement of
the fundamental right is claimed by resort to the remedy in public law under
the Constitution by recourse to Articles 32 and 226 of the Constitution.41
9 Registration Of Case Against Police:
When the information is regarding the commission of cognizable offences by
the police officials, including the said Sub-Inspector's own higher officials it
is the duty of the officer in charge of the police station to register the case. No
Police Standing Order prevents him from doing so. 42 There is no different
procedure for the investigation and prosecution of offence committed by
police officers in connection with their relations with the public.43
10 Nature Of Public Law Remedy:
A Court of law cannot close its consciousness and aliveness to stark realities.
Mere punishment of the offender cannot give much solace to the family of
the victim - civil action for damages is a long drawn and cumbersome judicial
process. Monetary compensation for redressal by the Court finding the
39 Byrne v. Ireland, (1972) IR 241,
40 Tmt.Rohini Lingam v. State and others, 2008 Cr.L.J. (NOC) 961 (Mad)
41 Bhim Singh vs. State of J&K, 1985 (4) SCC 677 ; Peoples' Union for Democratic Rights vs. Police
Commissioner, Delhi Police Headquarters, 1989 (4) SCC 730.
42 A. Nallasivan v. State Of Tamil Nadu and Others, 1995 Cr.L.J -2754 -Mad;
43 State of Punjab v. Raj Kumar (1988) 1 SCC 701, AIR 1988 SC 805
infringement of the indefeasible right to life of the citizen is, therefore, a

useful and at times perhaps the only effective remedy to apply balm to the
wounds of the family members of the deceased victim, who may have been
the bread winner of the family.44 Compensation in public law ought to be
directed to be paid by the State for the humiliating and unauthorized assault
caused by the Police to anyone.45
The public law proceedings serve a different purpose than the private law
proceedings. The relief of monetary compensation, as exemplary damages, in
proceedings under Article 32 by the Supreme Court or under Article 226 by
the High Courts, for established infringement of the indefeasible right
guaranteed under Article 21 is a remedy available in public law and is based
on the strict liability for contravention of the guaranteed basic and
indefeasible rights of the citizen. The purpose of public law is not only to
civilize public power but also to assure the citizen that they live under a legal
system which aims to protect their interests and preserve their rights.
Therefore, when the court moulds the relief by granting compensation in
proceedings under Article 32 or 226 seeking enforcement or protection of
fundamental rights, it does so under the public law by way of penalizing the
wrongdoer and fixing the liability for the public wrong on the State which has
failed in its public duty to protect the fundamental rights of the citizen. The
payment of compensation in such cases is not to be understood, as it is
generally understood in a civil action for damages under the private law but
in the broader sense of providing relief by an order of making 'monetary
amends' under the public law for the wrong done due to breach of public
duty, of not protecting the fundamental rights of the citizen. The
compensation is in the nature of exemplary damages awarded against the
wrongdoer for the breach of its public law duty and is independent of the
rights available to the aggrieved party to claim compensation under the
private law in an action based on tort, through a suit instituted in a court of
competent jurisdiction or/and prosecute the offender under the penal law.46
44 D.K.Basu v. State of W.B., AIR 1997 SC 610; (1997) 1 SCC 416; 1997 Crl.L.J.743
11 Effect Of Acquittal:
Mere acquittal of the police personnel in the criminal case will not absolve
the responsibility of the State Government in paying compensation for the
atrocities committed and custodial violence caused against the citizen. For the
custodial violence the aggrieved party is entitled to compensation not only
under the principles of strict liability but also on absolute liability.47
12 Complaint By Accused In Prison:
Torture is not a crime in India. To convict a law enforcement officer
concerning torture, the act has to qualify for all the requirements for any
other crimes under the Indian Penal Code, 1890. To prove a crime, meeting
all standards and that can be punished under the Indian Penal Code is difficult
because of the absence of independent investigating agencies. The absence of
an independent agency to investigate cases of custodial torture is exploited by
the offenders since they know that even if a complaint is made regarding
torture it will not be properly investigated. 48 We cannot legitimately expect an
accused to lodge the complaint against police official when he is in prison. 49
13 Case To Be Registered In Case Of Encounter Death:
Encounter killings, yet another corollary of custodial torture are increasing
alarmingly in India. The cases of "encounter killings" reported from the states
of Gujarat, Uttar Pradesh, Karnataka, Chhattisgarh and Andhra Pradesh show
a consistent and alarming pattern of tolerance for the use of violence by state
agencies.50
Nobody can say that the police should wait till they are shot at. It is for the
force on the spot to decide when to act, how to act and where to act. It is not
for the Court to say how the terrorists should be fought. If the police had
information that terrorists were gathering at a particular place and if they had
surprised them and arrested them, the proper course for them was to deal with
47 Palaniammal v. State of T.N., (2008) 5 MLJ 541
48 Submission by the Asian Legal Resource Centre to the Human Rights Councils Universal
Periodic Review on human rights in the Republic of India
49 Denny v. District Collector, Vellore and others. (2008) 2 MLJ (Crl) 329
50 Submission by the Asian Legal Resource Centre to the Human Rights Councils Universal
Periodic Review on human rights in the Republic of India
them according to law. "Administrative liquidation" was certainly not a

course open to them.51 In an encounter if police officer causes death of a
person even in self-defence, it is culpable homicide, but whether it would
constitute an offence or not, that would depend on the investigation and the
trial, if any. But the police officer who caused the death, may be in selfdefence, cannot himself be the judge of his own cause. 52 The law on right of
private defence would play only at the time of trial or at best during the
investigation, but not before investigation.53 In case of death caused in an
encounter with the police, the procedure prescribed by the National Human
Rights Commission, in its communication dated 29-3-1996, must be
followed.54
It is not the domain of the representative of the Executive to decide whether
the occurrence of firing by police took place by way of self defence or not.
Even if such a finding had been returned by the RDO a case should have been
filed as against the police official concerned and the finding of the RDO
should have been tested before the judicial forum. 55 If a police officer gives
an information to the in charge of the police station that in an encounter a
person got killed while police officer was acting in self-defence, it amounts to
giving an information of a cognizable offence having been committed
because life is lost. Cr.P.C. does not prohibit inclusion of police officials, in
the list of accused, if during the course of investigation their culpability is
suspected.56
When a person is dead in an encounter with the police, the question of
accusing him of attempt to murder, does not arise. Further, any investigation
51 People's Union for Civil Liberties v. Union of India, (1997) 3 S.C.C. 433 : AIR 1997 SC 1203.
402 A.P.
53 V. Subramani v. State of T.N., (2005) 10 S.C.C. 358 : 2005 Cri LJ 1727.; Andhra Pradesh Civil Liberties
Committee rep. by its General Secretary v. State of A. P. & another, 2008 Cr.L.J. 402 A.P.
54 A. Anasurya v. Station House Officer, Tadicherla, 2001 (2) ALD 87.
55 Denny v. District Collector, Vellore and others. (2008) 2 MLJ (Crl) 329
402 A.P.
into the question, as to whether the death of the person is on account of any
indiscriminate use of weapons by the police, without any provocation and
other related facts, cannot be carried out, on the basis of a crime registered
under Section 307, or the allegations, which are relevant to that provision. In
fact, it would amount to contradiction in terms.57
14 Magisterial Enquiry:
The death in an encounter, cannot stand on a higher footing, than the one, in
police custody, in the limited context of the possible culpability of the police
officials. Whenever a death takes place, in police custody, the procedure under Section 176 of the Code, is required to be followed.58
Under sub-section (1) of Section 176 of the Code when a person dies while in
police custody, a Magistrate may hold an inquiry into the cause of death
which will be either instead of, or in addition to, the investigation held by the
police officer. Section 176 no where controls Section 154 of the Code.
Section 176 of the Code applies to the deaths of persons in police custody,
but not to deaths caused in exchange of fire or in encounter when the person
who dies was not in the custody of police. The Executive Magistrate is
conferred with all the powers, which are necessary to hold inquiry into an
offence. He can record the evidence, examine the dead-body, and ascertain
the cause of death. The Executive Magistrate is also placed under obligation
to inform the relatives of the deceased person, wherever it is possible. During
the course of enquiry, the persons, who have any knowledge about the occurrence, can furnish the information, and it will constitute the basis for the
report, that may have to be submitted by the Executive Magistrate. If the
report of the Executive Magistrate, or the result of an investigation, by the
police, into such an incident, is not satisfactory, law provides for several
remedies, in the form of private complaints, protest petitions, or writ
petitions, to ensure that steps contemplated under law are complied with. The
report submitted by the Executive Magistrate, shall constitute the basis for
further steps under Section 190.59
402 A.P.
402 A.P.
15 Difficulty Of Proving The Offence:

Police officers alone, and none else, can give evidence as regards the
circumstances in which a person in their custody comes to receive injuries
while in their custody. Bound by ties of a kind of brotherhood, they often
prefer to remain silent in such situations and when they choose to speak, they
put their own gloss upon facts and pervert the truth. The result is that persons,
on whom atrocities are perpetrated by the police in the sanctum sanctorum of
the police station, are left without any evidence to prove who the offenders
are.60
16 Burden Is On The Person Having Custody:
When death was caused while the deceased was in the custody of the
accused, accused is obliged to give a plausible explanation for the cause of
death in his statement under Section 313, Cr.P.C.61
17 Courts To Show Sensitivity:
Cases where violation of Article 21 involving custodial death or torture is
established or is incontrovertible stand on a different footing when compared
to cases where such violation is doubtful or not established. Where there is no
independent evidence of custodial torture and where there is neither medical
evidence about any injury or disability, resulting from custodial torture, nor
any mark/scar, it may not be prudent to accept claims of human right
violation, by persons having criminal records in a routine manner for
awarding compensation.62 The courts are required to have a change in their
outlook approach, appreciation and attitude, particularly in cases involving
custodial crimes and they should exhibit more sensitivity and adopt a realistic
rather than a narrow technical approach, while dealing with the cases of
custodial crime so that as far as possible within their powers, the truth is
402 A.P.
60 State of U.P. v. Ram Sagar Yadao. AIR 1985 S.C. 416, ; Constitutional Law of India by H.M. Seervai, Fourth
Edition, Volume 2, page 1171.
61 Ganeshlal v. State of Maharashtra, 1993 SCC (Cri) 435 : 1992 Cri LJ 1545,
62 Sube Singh v. State of Haryana 2006-Cr.L.J -1242 -SC
found and guilty should not escape so that the victim of the crime has the
satisfaction that ultimately the majesty of law has prevailed. 63
The courts must deal with such cases in a realistic manner and with the
sensitivity which they deserve, otherwise the common man may lose faith in
the judiciary itself, which will be a sad day. The courts are required to have a
change in their outlook and attitude, particularly in cases involving custodial
crimes and they should exhibit more sensitivity and adopt a realistic rather
than a narrow technical approach, while dealing with the cases of custodial
crime so that as far as possible within their powers, the guilty should not
escape so that the victim of the crime has the satisfaction that ultimately the
majesty of law has prevailed.64 Courts should while jealously protecting the
fundamental rights of those who are illegally detained or subjected to
custodial violence, should also stand guard against false, motivated and
frivolous claims in the interests of the society and to enable Police to
discharge their duties fearlessly and effectively.65
18 Invocation Of Writ Power For Remedy:
Award of compensation in a proceeding under Article 32 by the
Supreme Court or by the High Court under Article 226 of the Constitution is
a remedy available in public law, based on strict liability for contravention of
fundamental rights to which the principle of sovereign immunity does not
apply, even though it may be available as a defence in private law in an action
based on tort.66 In cases where custodial death or custodial torture or other
violation of the rights guaranteed under Article 21 is established, courts may
award compensation in a proceeding under Article 32 or 226. However,
before awarding compensation, the Court will have to pose to itself the
following questions :
a Whether the violation of Article 21 is patent and incontrovertible,
b whether the violation is gross and of a magnitude to shock the
conscience of the court,
63 Munshi Singh Gautam and others v. State of M.P., AIR 2005 SC 402; 2005 SCC (9) 631
65 Sube Singh v. State of Haryana 2006-Cr.L.J -1242 SC; Munshi Singh Gautam and others v. State of M.P., AIR
2005 SC 402; 2005 SCC (9) 631
66 Nilabati Behera vs. State of Orissa, 1993 (2) SCC 746
whether the custodial torture alleged has resulted in death or whether

custodial torture is supported by medical report or visible marks or
scars or disability. Where there is no evidence of custodial torture of a
person except his own statement, and where such allegation is not
supported by any medical report or other corroboration evidence, or
where there are clear indications that the allegations are false or
exaggerated fully or in part, courts may not award compensation as a
public law remedy under Article 32 or 226, but relegate the aggrieved
party to the traditional remedies by way of appropriate civil/criminal
action.67
19 Standard Of Proof Required:

Rarely in cases of police torture or custodial death, direct ocular evidence of
the complicity of the police personnel would be available. Bound as they are
by the ties of brotherhood, it is not unknown that the police personnel prefer
to remain silent and more often than not even pervert the truth to save their
colleagues. The exaggerated adherence to and insistence upon the
establishment of proof beyond every reasonable doubt, by the prosecution,
ignoring the ground realities, the fact-situations and the peculiar
circumstances of a given case often results in miscarriage of justice and
makes the justice delivery system a suspect. In the ultimate analysis the
society suffers and a criminal gets encouraged.68
In the prosecution of a police officer for an alleged offence of having caused
bodily injuries to a person while in police custody, if there is evidence that
the injury was caused during the period when the person was in the police
custody, the court may presume that the injury was caused by the police
officer having the custody of that person during that period unless, the police
officer proves to the contrary. The onus to prove the contrary must be
discharged by the police official concerned.69
20 Tackling Problem Of Custodial Violence:
68 State of Madhya Pradesh V. Shyamsunder Trivedi, 1995-SCC-4-262; Munshi Singh Gautam and others v. State
of M.P., AIR 2005 SC 402; 2005 SCC (9) 631
69 113th Report of the Law Commission
Custodial violence requires to be tackled from two ends, that is, by taking
measures that are remedial and preventive. Award of compensation is one of
the remedial measures after the event. Effort should be made to remove the
very causes, which lead to custodial violence, so as to prevent such
occurrences. Following steps, if taken, may prove to be effective preventive
measures :
a Police training should be re-oriented, to bring in a change in the
mindset and attitude of the Police personnel in regard to
investigations, so that they will recognize and respect human rights,
and adopt thorough and scientific investigation methods.
b The functioning of lower level Police Officers should be continuously
monitored and supervised by their superiors to prevent custodial
violence and adherence to lawful standard methods of investigation.
c Compliance with the eleven requirements enumerated in D. K. Basu
case should be ensured in all cases of arrest and detention.
d Simple and fool-proof procedures should be introduced for prompt
registration of first information reports relating to all crimes.
e Computerization, video-recording, and modern methods of records
maintenance should be introduced to avoid manipulations, insertions,
substitutions and ante-dating in regard to FIRs, Mahazars, inquest
proceedings, Port-mortem Reports and Statements of witnesses etc.
and to bring in transparency in action.
f An independent investigating agency (preferably the respective
Human Rights Commissions or CBI) may be entrusted with adequate
power, to investigate complaints of custodial violence against Police
personnel and take stern and speedy action followed by prosecution,
wherever necessary.70
21 Victim Entitled For Compensation:
There is indeed no express provision in the Constitution of
India for grant of compensation for violation of a fundamental
right to life, nonetheless, this Court has judicially evolved a
right to compensation in cases of established unconstitutional
deprivation of personal liberty or life. 71 Award of
compensation as a public law remedy for violation of the
fundamental rights enshrined in Article 21 of the Constitution,

in addition to the private law remedy under the Law of Torts,
was evolved in the last two and half decades. 72 Article 9(5) of
the International Covenant on Civil and Political Rights, 1966
(ICCPR) provides that "anyone who has been the victim of
unlawful arrest or detention shall have enforceable right to
compensation". No one can with impunity set the
fundamental rights at naught or circumvent them, and that
the Court's powers in this regard are as ample as the defence
of the Constitution requires.73
In exceptional cases compensation may be awarded in a
petition under Article 32. The infringement of the
fundamental right must be gross and patent, that is,
incontrovertible and ex facie glaring and either such
infringement should be on a large scale affecting the
fundamental rights of a large number of persons, or it should
appear unjust or unduly harsh or oppressive on account of
their poverty or disability or socially or economically
disadvantaged position to require the person or persons
affected by such infringement to initiate and pursue act in
the civil courts.74
Relief in exercise of the power under Article 32 or 226 would
be granted only (when) it is established that there has been
an infringement of the fundamental rights of the citizen and
no other form of appropriate redressal by the court in the
facts and circumstances of the case, is possible. 75 A claim in
public law for compensation for contravention of human
71 Neelabati Behera v. State, 1993 AIR SCW 2366 ; D.K.Basu v. State of W.B., AIR 1997 SC
610; (1997) 1 SCC 416; 1997 Crl.L.J.743.
72 Sube Singh Vs. State of Haryana 2006-Cr.L.J -1242 -SC
73 Quinn v. Ryan (1965) IR 70 (122)
74 M. C. Mehta vs. Union of India, 1987 (1) SCC 395
rights and fundamental freedoms, the protection of which is

guaranteed in the Constitution, is an acknowledged remedy
for enforcement and protection of such rights, and such a
claim based on strict liability made by resorting to a
constitutional remedy provided for the enforcement of a
fundamental right is distinct from, and in addition to, the
remedy in private law for damages for the tort resulting from
the contravention of the fundamental right. 76 It may be
necessary to identify the situations to which separate
proceedings and principles apply and the courts have to act
firmly but with certain amount of circumspection and selfrestraint, lest proceedings under Article 32 or 226 are
misused as a disguised substitute for civil action in private
law.77
An action for damages lies for bodily harm which includes
battery, assault, false imprisonment, physical injuries and
death. In cases of assault, battery and false imprisonment the
damages are at large and represent a solatium for the mental
pain, distress, indignity, loss of liberty and death. 78 Award of
compensation against the State is an appropriate and
effective remedy for redress of an established infringement of
a fundamental right under Art.21 by a public servant. 79
22 Quantum Of Damages:
In the assessment of compensation, the emphasis has to be
on the compensatory and not on punitive element. The
objective is to apply balm to the wounds and not to punish
the transgressor or the offender, as awarding appropriate

78 Saheli, A womens Resources Centre v. Commissioner of Police, Delhi and others, AIR 1990
SC 513; (1990)1 SCC 422; (1989)1 MLJ(Crl)672
79 Rajammal v. State of Tamil Nadu, (2008)2 MLJ(Crl)1473; 2008 Cr.L.J.2280 Mad.
punishment for the offence (irrespective of compensation)

must be left to the Criminal Courts in which the offender is
prosecuted, which the State, in law, is duly bound to do. 80
The claim is not a claim in private law for damages for the
tort of false imprisonment, under which the damages
recoverable are at large and would include damages for loss
of reputation. It is a claim in public law for compensation for
deprivation of liberty alone. 81 To assess compensation for the
wrongful death of any person, the principles for assessing
compensation under the Motor Vehicles Act, 1988 can be
applied.82 When a person died in an unnatural manner
because of the carelessness of the police officials, the High
Court in its writ jurisdiction awarded compensation of
Rs.2,00,000/-.83
23 Civil Remedy Is Not Barred:
The award of compensation in the public law jurisdiction is
also without prejudice to any other action like civil suit for
damages which is lawfully available to the victim or the heirs
of the deceased victim with respect to the same matter for
the tortuous act committed by the functionaries of the State.
The relief to redress the wrong for the established invasion of
the fundamental rights of the citizen, under the public law
jurisdiction is in addition to the traditional remedies and not
in derogation of them. The amount of compensation as
awarded by the Court and paid by the State to redress the
wrong done, may in a given case, be adjusted against any
amount which may be awarded to the claimant by way of
damages in a civil suit.84
81 Maharaj v. Attorney General of Trinidad and Tobago (1978) 2 All ER 670,
82 T.Sekaran
v. State of T.N. & Ors.,
2010 CIJ 73 IPJ
83 Santosh Kumari v. State of H.P. and others, 2008 Cr.L.J. (NOC) 556 (H.P.)

Custodial Violence

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Custodial Violence

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Custodial Violence

If you once forfeit the confidence of

and to attain these ends nearly all other considerations are to be

12 Dalbir Singh v. State of U.P., 2009 Cr.L.J. 1543 SC

a calculated assault on human dignity and whenever human dignity is

in 'Khaki' to consider themselves to be above the law and sometimes even to

if a specific complaint is made, alleging that any identified

33 Simpson v. Attorney General (Baigent's case) 1994 NZLR 667,

infringement of the indefeasible right to life of the citizen is, therefore, a

them according to law. "Administrative liquidation" was certainly not a

15 Difficulty Of Proving The Offence:

66 Nilabati Behera vs. State of Orissa, 1993 (2) SCC 746

whether the custodial torture alleged has resulted in death or whether

19 Standard Of Proof Required:

69 113th Report of the Law Commission

fundamental rights enshrined in Article 21 of the Constitution,

rights and fundamental freedoms, the protection of which is

77 Nilabati Behera vs. State of Orissa, 1993 (2) SCC 746

punishment for the offence (irrespective of compensation)

v. State of T.N. & Ors.,

2010 CIJ 73 IPJ

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