Causes and Concept of Custodial Violence

1
CHAPTER- II
CONCEPT, MEANING AND CAUSES OF CUSTODIAL
VIOLENCE
The problem of police atrocities in India is not a new concept
1
. The police are the
first line of defence against criminals. The efficient work of the legal department is based
on the initial work done by police. Society has confidence in the police despite criticism as
to their philosophy of work and methods. In India every year, lakhs of people are taken in
to custody by the police
2
. The practices of brutality by the police in the police custody
against detainees are the suspects have largely tarnished the image of police as custodial
violence has become an intrinsic part of the police administration
3
.
Tortures in police custody are on the increase
4
. Torture in state custody flouts the
very purpose of statehood and minimal human rights guaranteed to its subject. It is an
insult to human dignity and to the state of affairs of governance of the nation. The
Malignancy of criminalization affected so much so to the police administration and there
has been a consistent and accelerated growth of custodial violence believed to have
patronage of higher icons. The concomitance being a deep rooted aberration has
manifested in to a situation giving criminals within the operating system and their abettors
a hold over the reins of administration directly or indirectly. The said reasons inter alia are,
the exaggerated adherence to and insistence upon the establishment of proof beyond every
reasonable doubt by the prosecution at times even when the persecuting agencies, are
themselves fixed in the dock, ignoring the ground relatives, the fact situation and the
peculiar circumstances of a given case, often results is miscarriage of justice and makes the
justice delivery system suspect and vulnerable.

1 Tanjeem Fatima, Police Atrocities vis a vis Custodial Violence in India perspective, The Indian Police
Journal , July/September 2003, P-83
2 S. Subramanian, Prevention of Deaths in Police Custody, ICBT Bulletin, Jan, 1994.
3 Ashirbani Dutta , Custodial Torture- A Shameless Truth Behind the bars, Cri L.J Oct 2006, p. 241
4 Supreme Court of India in the Matter of Custodial Violence, V. Malevolent Prosecution 2003.

2
In the ultimate analysis the society suffers and a criminal gets encouraged. Torture
in police custody, which of late are on the increase, receive encouragement by this type of
an unrealistic approach at times of the courts as well because it reinforces the belief in the
mind of the police that no harm would come to them if one prisoner dies in the lock-up
because there would be hardly be any evidence available to the prosecution to directly
implicate them with the torture.
Being custodian of law and order, police are themselves in possession of
evidentiary records, as a result of case gets buried by the heavy weight of delinquent
policing system and the culprit escape from criminal liability in such cases
5
.
One of the essential functions of the state is to maintain law and order and ensure
dignity of its citizen and this function is entrusted to an agency known as Police.
Accordingly to black's law dictionary Police means "branch of the government which is
charged with the preservation of the public order and tranquility, promotion of public
health safety and morals and the prevention, detection and punishment of crimes.
Policeman, as a custodian of law has multifaceted rule in the society viz.
preservation of lives and property, protection of innocent against oppression and
intimidation nipping the delinquent tendencies and to act incessantly to ensure peace and
order in the society where liberty, equality and justice permeate all men are the cherished
ideals of policeman. To discharge these legitimate duties wide powers of arrest and
investigation are vested in police by law but these powers are abused by the police to
torture the suspects either to solve a crime or for sadistic pleasure which stands
paradoxically in relation to the cherished duties of the police
6
.
The power to arrest the accused persons is vested in the police under chapter v of
the Code of Criminal Procedure but power to arrest are abused by the police defeating the
objects of the administration of criminal justice the powers of the police to interrogate a
person flow from the power to investigate in to an offence.

5 Custodial Violence - Strippies the Human Dignity, Oct 2008, Journal , p. 95.
6 Criminal Law Journal - April 2008 - Journal Section.

3
Investigation of the case is the important function after the arrest of the accused is
made, in which starts right from the filing of the IR to the submission of the case in the
court of law and involves various important steps such as the detention of the accused,
collection of the evidence, interrogation etc. the power of investigation affords the police
the occasion to perpetrate the third degree torture of suspects to detect the crime as matter
of routine.
Meaning of custodial violence:-
Custodial violence means torture in police custody the word Torture has not been
defined in the constitution or in other Penal law of India. The term torture has its origin in
the Latin word torture which means infliction of severe bodily pain. Though irrational and
cruel on its very face torture had been in existence since the very inception of the society.
In website Dictionary, it has been defined as extreme pain or torment both mental and
physical. According to encyclopedia Britannica torture is a general name given to the
infliction of pain bodily or mental. The excessive use of force for making arrest of the
accused is torture.
Custodial Torture is a naked violation of human dignity and degradation, which
destroys, to a very large extent, the individual personality. It is a calculated assault on
human dignity and whenever human dignity is wounded, civilization takes a step
backward. Custodial violence and abuse of police power is not only peculiar to this country
but it is also widespread.
These violations are committed under the shields of "uniform" and "authority"
between the four walls of a police station, lock-up and prison, where the victims are totally
helpless. The quality of nation's civilization can be largely measured by the methods it uses
in enforcing criminal law. In recent years, third degree torture and custodial deaths have
become an intrinsic part of police investigations and the injury inflicted on the prisoners is
sometimes unbearable. No doubt, the police officers have contributed towards the
maintenance of public order and their plans are also enforced with purity, activity,
vigilance and description. But more often that, the police officers have been abused and

4
condemned for torturing the public, particularly those who are in custody and detention
and inflicting injuries to their life and property. In almost every state there are allegations
and increasing in frequency of deaths in custody, generally prescribed by the newspaper as
lock-up deaths every day, carrying reports of assault, torture, rape and death of person in
police custody.
Causes of custodial violence:-
1. Due to poor police.
2. Lack of proper education and awareness on human rights laws.
3. Lack of training in sophisticated method of investigation. Training of police is
archaic in content and method. The emphasis is still more on muscle than on mind.
They believe that aggressive enforcement*of law and order as a quick fix solution
to the problem of rising crime, without tackling the root cause for increasing crime.
4. Stress due to pathetic working conditions of police officers.
5. Corruption due to poor conditions of service in respect of pay, emoluments and
other amenities
7
.
6. The greatest obstacle to efficient police administration flows from the domination
of party politics in the state administration. Its pressure is applied in varying
degrees and it often affects different branches of administration, which will be
more on police administration.
7. Lack of proper infrastructure facilities in police stations the absence of separate
female lock-ups in many police stations making it unsafe for women accused for
detention at police station after their arrest. Added to the full, lack of proper
supervision by the superior authorities.

7 Justice V.R. Krishna Iyer, Judges Potpurrri, Universal Law Publishing Company, Allahabad, 2007,
edition 24, p. 24

5
8. The growing political interference in the day-to-day working of police has turned
the force into becoming the agents of the party in power.
9. A part of the problem also lies in the aggressive enforcement of law and order as a
quick-fix solution to the problem of rising crime, without tackling the root cause for
the increase in crime.
10. There has been a malfunctioning of our criminal justice system. The basic criminal
law in the country is made up of the Indian Penal Code, the Code of Criminal
Procedure, and the Evidence Act. The fact that criminal justice system in India is in
shambles because it is archaic, obsolete and oppressive in its nature. This is because
of unhelpful laws like easy release of bail even to the desperate and dangerous
criminals, delays in court trials, which result to the over-loading of court etc. All
these definitely erode the public confidence in the legal process.
11. The lack of proper in infrastructural facilities- the absence of separate female
lockups in many police stations has made it unsafe for women accused persons for
detention at the police station after their arrest.
12. Due to trip absence of proper supervision of the senior level officials, the junior
level officials tend to violate the rights of the citizens.
13. Obsolescent and outdated organizational system-one of the most important reasons
for the inability of the police system is to confirm the demands of the human rights
mandate, because of the continuance of an obsolete and outdated organizational
system. The heart of the matter is that the basis rule of the police and its structure
did not undergo any change.
14. The working conditions of the policemen. According to the lower ranks of police
officials, their working conditions are quite pathetic. They are highly dissatisfied
with their pay structure. They do not have any fixed hours of word; family
accommodation is not available to a majority of them and their promotion

6
prospectus is nil. Hence they adopt the short cut methods. It becomes difficult for
them to be sensitive towards human rights under these conditions.
15. Lack of accountability-as we see, for the past few years, there has been a total lack
of control and accountability in the police system. This can be seen in
theambivalent attitude of the police to use third degree methods and the informal
detentions with the punishment of death or life imprisonment.
16. Root cause of custodial violence: Police brutality.
Police brutality an introduction:-
Brutality includes any and every type of physical violence but it is not absolutely right it
includes more than that. It includes any harassment that causes suffering e.g. not allowing a
man to sleep as also rude behavior so typical of any of us who has any power, whether in
government or in a private organization over our fellow human? Rudeness by word of
mouth can also hurt. When a policeman in the U.S.A. calls a Negro boy or Nigger it is
perceived as brutality repeated calling a man to the police station or an office and then
making him wait for long hours is also brutality of a kind. Personal violence and such
harassment as cause suffering, mental or physical are taken as brutality
8
.
Further there is a tradition in the police to use the words Third degree for
application of brutality, only during investigation of offences. Originating from
freemasonry third degree means questioning a subject by user of torture or something
similar in order to elicit a confession or to find out all he knows. This raises the
presumption that the victim of third degree in always in police custody. The hue and try
rose against police brutality in newspapers, journals and even the legislature has thus a
sound basis. Police behavior is rightly concern of the media. But it must also be
remembered that newspaper reports, sometimes, tend to be reasonable. A couple of years
ago almost every day, the national dailies carried reports of rapes by policemen and for a

8 Shailendra Mishra, Police Brutality Analysis of Police Behavior, Vikas Publishing House, Noida,
1986, P-1.

7
few months it appeared as if policemen were doing nothing but raping women then
suddenly it stopped. The reason was over. But regardless of this a general trend can be
made out. In the concern expressed about police behavior and brutality is taken for granted
and the phenomenon is described and criticized and sometimes an interest is shown in
whether things will change now politicians, bureaucrats, academicians, journalists and
policeman themselves hope and wish are expressed in lectures or policemen exhorting
them to improve their behavior. This exhortation has not achieved the desired result. The
fact is since its inception brutality has been a most tenacious attribute of the behavior of our
police. There is nothing very surprising about it up to about the eighteenth century brutality
was an integral part of the criminal administration of most countries.
Torture was an accepted method both by the people and government of dealing
with law breakers. But from the latter half of the nineteenth century it has been castigated
an India too ever since the torture commission, brutality of government officials, including
the police has been a cause of concern
9
.
Look of disciplinary control is not an adequate explanation of the phenomenon for
even in the good old days when the superintendent of police could hire and fire
sub-inspectors or station house officers and there was no political interference our
policemen were extensively given to brutality.
The brutality of police therefore, springs from deeper recesses than the apparent
insecurity, cussedness, inhumanity of policemen. It seems almost like an inexorable
concomitant of their role and role performance. The purpose is to try to uncover these
recesses, to try and understand why brutality has been such a tenacious ingredient of police
behavior, and why treats, exhortation, appeal, advice training nothing seems to work. The
police remain as they were much can be made of regional analysis of police behavior is
meaningless. The same police act and the same substantive and procedural criminal laws
operate all over the country order roughly similar circumstances producing similar

1986, p. 3.

8
constraints, pressures and stresses and for the environment many trends it would be seem
as world wide
10
.
Analytical study of the role of police:-
A particular role means a particular conduct because role means a particular part or
position which demands a particular type of conduct. The particular type of conduct is
expected regardless of who the role performer is but sometimes the conduct expected of
them is not uniform; in case of police several roles are expected of them different
occasions, as a result policemen in India perform a variety of roles.
The role ascribed by law, the role desired by their superiors including the
government the role expected by the people, particularly the victims and the role which
they think they ought to perform.
The people are not a uniform entity; different groups of them expect different roles
e.g. students burning buses, Labour on strike, management desiring police threat to plant
and machinery, loyal workers seeking protection for going to work, teachers, the
politicians of the party in power or in the opposition or these simply out of power, the
influential urbanite with contracts the poor, the weak, with no controls the criminal
conscious of their rights. The victims, the lawyers, the judges, the list is endless. But is the
basic thing is the role that law expects the police to perform the legal situation has to be
examined first. It would be found that use of force a certain degree of violence or brutality
is legally built into the role of police and the present organization of police based on Police
Act of 1861, was not intended for rendering courteous service
11
.
The present role of police is defined in the Police Act of 1861, which was based on
the draft bill submitted by the Police Commission of 1860. The Preamble to the Police Act
if 1861 stated:

1986, p. 4.
1986, p. 6.

9
Whereas it is expedient to reorganize the Police and to make it a more efficient
instrument for the prevention and detection of crime
12
.
Section 23 enumerated the duties of Police officers as:-
It shall be the duty of every police officer promptly to obey and execute all orders and
warrants lawfully issued to him by any competent authority to collect and communicate
intelligence affecting the public peace to prevent the commission of offences and public
nuisance; to detect and being offenders to justice and to apprehend all persons whom he is
legally authorized to apprehend and for whose apprehension sufficient ground exists.
The priorities are worth nothing. The police are not an instrument of law or Part of
a criminal justice system. Their duty is to obey all lawful orders, second to collect and
communicate intelligence, third to prevent and detect crime.
The word offence has been defined in the Indian Penal Code of 1860, as a made punishable
either under the Indian Penal Code or under special or local thing law.
The police manuals and rules under the act further these duties:-
1. Watch and ward.
2. Prevention of crime.
3. Detection of crime.
4. Prevention of breach of peace.
5. Bandobust on the occasion of important religious festivals and public gathering to
prevent clashes between different communities.
6. Control of traffic.

1986, p. 7.

10
7. Guards and escorts.
8. Protection public property.
9. Duties enjoined by the various special and local laws such as Gambling Act 1867,
Explosive Act 1884, and The Indian Railways Act 1890 etc. This role of police was
neither a transplant from the U.K. nor an innovation for even before the British.
There was a police organization in India and the officers who formed part of that
organization had been performing similar functions
13
.
The basic concepts in ancient India were of dharma and danda and there were
functionaries to ensure the operation of danda. Dandaniti was an important ingredient
of state craft. It was not a transplant from the U.K. because the legal definition of
Police rule in the U.K. is totally different from what obtains in India
14
.
As compared to this the essence of the legally prescribed role of our police is that:-
a) It prevents and detects crime as defined in the substantive criminal law of
the country which means to Indian Police Code and local and special laws,
in the manner prescribed in the procedural criminal law which means the
Code of Criminal Procedure.
b) It collects intelligence affecting the Police Peace and what intelligence
affects the public peace is for the executive to decide because the Police are
firmly an instrument of the executive and not merely a law enforcement
agency.
c) Its organization and discipline are centralized in the hands of the state and in
some ways the central government.

1986, p. 10.
1986, p. 11.

11
d) It is patterned after the army and to that extent is not really a civil police.
The Sind Police Model of Sir Charles Napier copied by the Police Act of 1861, was
based on the Royal Irish constabutory and not anything that the English had in their own
countries, for colonies a separate set up, the gendarmerie as against the kin police was
devised naturally the first duty of any such police is to obey orders and the concept of force
is an essential ingredient of it.
To discharge this role the powers the Indian Police have are basically these of arrest
and search but application of force is expected of and permitted to police under certain
circumstances should a person resist arrest or attempt or evade it the police officer may use
all means necessary to effect the arrest on the use of all means the limitation is that these
means should not cause death of the person unless that person is accused of an offence,
punishable with death or with imprisonment for life
15
.
Application of force, which means brutality e.g. hitting people with canes and lathis
is legally required ingredient of the role of police. All inquiries particularly, judicial
inquiries held on police handling of a law and order situation try to determine if the force
used was the minimum necessary as warranted by the situation or not.
In addition to the specific provisions empowering police to use force is the general
right of private defence. It is often not realized that the right of private defence (Section 96
to 106 of the Indian Penal Code) is not merely available to all citizens it is also available to
policeman and under its protection the police also can even kill the source of threat.
Unlawful aggression can be repelled with violence by all and the police often use the right
of private defence in cases of encounters with dacoits and extremists. As in cases of police
brutality it is a question of unnecessary force the exercise of this tight gives a convenient
degree of latitude while a logical corollary of this right is that the violence used to repel
unlawful aggression should bear some relationship to the degree of harm sought to be

15 Section - 46(2) and 46 (3) of the Cr.P.C. 1973.

12
averted, in actual circumstances the victim of a threat cannot really be expected to assess
how much violence is proportionate to the threat he is faced with
17
The framers of law expected that these provisions would enable the 'timid' people
of India to become bold enough to defend themselves and their property. The people have
generally been unable to use this right. The reality of policemen and courts discourages the
exercise of this right by the people. Except for cases like villagers killing dacoits by and
large the police arrest the person, prosecute him in a Court of law, and only if he is able to
establish his right of private defence in the court is he freed from the rigors of the criminal
justice system. A person who kills another person in self-defence, both have to undergo the
same harassment, humiliation and prosecution at the hands of the police and law courts
16

The government
What our political leaders expect of the police can be seen in their speeches
particularly at police parades and during debates in legislatures. At the passing out parades
the emphasis is on good behavior, impartiality, efficiently and honestly to improve
police-public relations and particularly in the seventies and after on protecting the weaker
sections of our society against denial to them of their rights and liberties as guaranteed in
the constitution.
On 17 Nov 1975 the Prime Minister said that the police must try to command the
respect of the public. A special effort was required to bridge the gap between the police and
the public as also to comprehend the rapid socio-economic change taking place in the
country and concomitantly to change the attitude. Addressing I.P.S. probationers on 23
Nov 1976, the President said, that the primary duty of any government servant is to
safeguard the rights and liberties of weaker sections of the society the police must earn

1986, p. 13.

13
public satisfaction by their performance and improve their image by impartial and quick
discharge of their duties
17
.
The police must narrow the gap between their performance and public expectations
and senior officers should ensure that their subordinates are restrained courteous and
considerate in their treatment of complainants and witnesses and human in their treatment
of offenders, abjuring the use of third degree methods. During various discussions of major
tragedies such as mass murders, liquor tragedies and also the police budget, the emphasis is
a failure to maintain law and order and to control crime. Police behaviour also comes in but
law and order takes priority. Law and order, however means more than maintenance of
public order. The commission of a gruesome so crime and failure to check it provokes
charges of breakdown of law and order
18
.
So basically four things are expected of police
19
:-
1. Maintaining law and order.
2. Controlling crime.
3. Improving police-public relations by improving their image and working honestly
efficiently and impartially.
4. While impartial enforcement of law is expected policemen should pay particular
attention if the victim is from a weaker section of society.
While these expectations are unexceptionable the business of controlling crime often
works at cross purpose with the objective of improving police-public relations.
Maintaining law and order frequently means using force against agitating groups of people

1986, p. 16.

1986, p. 17.
19 Lok Sabha Debates: March 1978, 1979 and 1980 Sardar Vallabhbhai Patel, National Police Acdemy
Megazine generally issued of the year Vol. XXVI No. 2.

14
and during the activity of police can only make negative contribution to police community
relations etc
20
.
Section -31 of the Police Act 1861 speaks of the duty of keeping order in various types
of places, thus maintenance of order has also been considered an important duty of police.
The U.N. congress on the prevention of crime and treatment of offenders held in 1970 had
identified the following criminogenic factors, urbanization, industrialization, population
growth, internal migration, social mobility and technological change.
All these factors are present in India in varying degrees and none of them is susceptible
to police activity or influence what is more in a democracy, these factors should not be
vulnerable to police influence or activity. Another aspect of prevention is deterrence. There
is no doubt that certainty of detection and certainty of punishment deter crime but while the
former is within the control of police the latter involves, together with police, the
prosecuting agency and law court further it is now being increasingly believed that one
way to prevent crime is to resocialize the offender
21
.
All laws create crimes and if more and more of the human conduct are categorized as
criminal, even an ideal criminal justice system, including the best possible police cannot
prevent commission of more and more crimes. This is particularly true of those social laws
which create crimes and if more and more of the human conduct is categorized as criminal
even in criminal justice system, including the best possible police cannot prevent
commission of more and more crimes. This is particularly true of those social laws which
create the category the victim less crimes, such as gambling, drinking liquor where there is
no aggrieved party to complaint it would be seen, therefore, that the role of police in
prevention of crime is also considerably limited
22
.

1986, p. 19.
1986, p. 20.
1986, p. 21.

15
Successful investigation of an offence should mean only the prosecution of the
offender in a court of law. Section 23 of the Police Act 1861 speaks of the duty of police to
bring offenders to justice not to secure their conviction. In any case, the prosecution
agency is important to the outcome of the trial and therefore it is not within the exclusive
competence of police to secure convictions. After the prosecution agency come the law
courts, the primary features of which today are harassing procedures and inordinate delays.
The trial procedures are calculated to deter witnesses; they are meant for lawyers
particularly defence lawyers.
On account of the way a witness is treated by the court staff believed to be uniformity
corrupt, his time wasted, harassment caused to him by asking him to come at 10:30am and
recording his statement only at 4:30pm repeated adjournment, inquisitorial cross
examinations, no normal citizen would like to get involved many police case and yet the
success of the entire system depends on public cooperation. This basic and crucial
contradiction of our criminal justice system creates several practical obstacles for police.
Actually the pendency has been increasing from year to year. To success full law
enforcement this delay causes grievous harm. The accused who cannot afford bail may
spend varying periods in jails as an under trial where he might be lodged with convicted.
Criminals and on account of the impact those criminals leave upon him might find it
difficult to merge back in security. This means more criminals the witnesses of a criminal
case may either become untraceable or close interest in the case be won over by the
accused or forget the whole thing
23
.
The position of the correctional services is also not heartening although there were
probation acts in some states before independence. The parliament in 1958 legislated the
probation of offenders Act applicable to all the states and union territories in the country.
The concept of probation is intended to protect first offenders from the contamination of
prisons and probation officers are expected to place before the law courts the

1986, p. 23.

16
socio-economic, background, personality and behaviour of the offender to enable them to
decide whether the offenders should be sent to prison of can under certain conditions be
allowed to return to the community, Should subsequent reports indicate any failure on the
part of the person released on probation, the initial sentence which was suspended can be re
imposed without further trial. But the actual application of this act on account of too many
cases and too few probation officers has been far reaching
24
.
The output of police effort depends on system and situations outside the police
organization. There should be no question of police successfully maintaining order and
controlling crime all by themselves to illustrate the role of police in law and as per its place
in the criminal justice system is in regard to dacoities, to investigate the cases, arrest the
offenders and after collecting such evidence against them as may be available put them up
before a court of law. The fact that no person would stand in a court of law against dacoits,
particularly if part of gang is free and is operating, cannot modify the role of police. Even if
all dacoity cases are acquitted by Courts of law it is not for the police to find ways and
means to get around this situation. But this limitation on the role of the police is not
accepted by anyone, victims, government and policemen. This is basic role conflict the
resolution of which leads to conduct outside and against the law of land; dacoits are shot in
encounters goondas administered a beating and had characters paraded through the cities
on donkeys their heads shaved, all example of unnecessary force.
Role conflict also arises from the organization of the police as an instrument in the
heads of the executive plus the inertia of tradition.
In 1950
25
, the constitution of India set up a welfare state seeking to safeguard the
liberty of thought, expression, belief, faith and worship, assuring the dignity of the
individual and providing social, economic and political justice. In furtherance of these
objectives were enshrined the fundamental rights and the Directive principles of state

1986, p. 24.
1986, p. 26.

17
policy in the constitution itself. Towards these national goals what contribution could
police make? Could they safeguard fundamental rights if the government that be sought to
curb them? In fact the role of police has sometimes been directly opposite to this an
occasions when they have been used to reduce the rights of the people, either directly of
indirectly by assisting other government agencies which sought to encroach upon them.
While public cooperation had been essential for police even before independence,
democracy and a welfare state mode it crucial for now it was government by consent and
the enforcement of all laws and in particular, welfare legislation, depends on the good will
and support of the people.
There was no question of enforcing laws upon the people. Laws had to be
enforced to further the dignity of the individual, to endure that the rights of the people were
not violated. This support was however held at bay by the crudities of the criminal justice
system and the role of police together with its outlook and odious behaviour as the punitive
arm of the government. Such an instrument could only have adversary relations with the
people. Even the traditional test of police efficiency. The number of criminals the police
was able to catch and got convicted, further can firmed the view that the police were for
punishing.
Within a criminal justice system also there are conflicts. The common objective of
what can be called controlling crime and criminality is not pursued by the components of
the system; each component pursues its own organizational goals. The concern of police is
for control of crime; the concern of law courts is with the due process of law. Thus police
oppose bail but the courts grant it liberally, the police seem concerned about the victim of
crime. The courts about the rights of the accused. The police think the law courts look for
opportunities to acquit criminals, the courts feel that police investigations are often shoddy
and they also make indiscriminate arrests. The correctional administration finds the police
too repressive and conservation in its attitude towards criminals, the police think the
correctional services are too generous in extending their resocalisation approach to various
types of criminals.

18
These conflicts within the system put severe constraints on the successful role
performance of police e.g. conviction percentages. The liberal attitude shown by the
Courts while granting bail is one of the main hurdles faced by the forces of law and order in
the drive against dacoits, an officials spokesman said yesterday, says the statesman
26
. It
seems during 1981, the police arrested 12,314 dacoits of whom over 8,000 secured bail.
Phoolan Devi, the scourage of benami was arrested on a charge of dacoity on Jan 6, 1979
but was enlarged on bail. An associate of Gabbar dacoit, Maya, was arrested on Jan 1, 1979
but was released on bail. The dreadful dacoit's leader of the time Makhan Singh was
arrested twice but released on bail.
One Amar Singh was granted bail three times when he appealed against his
conviction on a murder charge he was during the pendency to the appeal, released on bail.
Next he committed a dacoity was arrested then released on bail; next he committed a
docility and murder was arrested and yet again released on bail. He has not been caught
again. In fact the criminal justice system does not operate as a system
27
.
Violent behaviour and a certain degree of brutality are in hercent in the role of
police, but because this role has to be performed is a sub system of a larger system when
the various sub systems work either in isolation or in conflict the use of unnecessary force
of crude behaviour such as offensive language becomes a part of the pattern of role
performance by the police.
The causes of police brutality
The commission has found one reason for police brutality in the lack of training of
constabulary who too frequently were permitted to investigate cases. The utterly
inadequate training given to constables, the general absence of any attention to the

26 The Stateman (New Delhi) February, 1982.
1986, p. 27.

19
necessity for keeping the temper, being civil and respectful to the public, avoiding brutality
or unnecessary harshness
28
.
Before the Punjab Police commission a number of policemen deposed as witness
on the subject of third degree methods among other things. A Sub-inspector said that
marpeat was done for the benefit of the public, without it the man would not come out with
the truth. According to Inspector when some officers lost patience they resorted to third
degree methods.
A Superintendent of police said this was the easiest way of working out crimes;
because of these method suspected criminals readily confessed their guilt.
An Assistant Inspector General of police said policemen thought they were by using
these methods, discharging their duties more efficiently. Members of the public
complained against those police officers who did not torture of beat up suspects, adding
that these offices were not making a serious effort to detect crime; giving up these methods
would result in deterioration of the law and order situation and crime would go up and
criminals would escape punishment in a large number of cases. A secretary to government
said the people have come to believe that when a Station House Officer is 'weak' crime
situation deteriorates courteous behaviour with a suspect would convey an impression of
weakness
29
.
In the mass of literature on police behaviour and police community relations the
following causes are mentions:-
1. Policemen are rude and brutal in their behaviour because they are like that and it is
a part of their tradition.
2. Because they generally deal with criminals.

28 Report of the Indian Police Commission 1902-1903 Para-24.
29Report of Punjab Police Commission 1962 P- 61, 62.

20
3. Because they are looked down upon by people and so whenever they have a
chance, they try o rescue their self- respect by being aggressive and rude.
4. Because they are frustrated and alienated.
5. Because this is what they learn within the organization.
6. Because they come from the lower strata of society.
7. Because they have long working hours within adequate compensation.
8. Because their training is defective and out of date.
9. Because there is no other way to function. Most policemen opt for the ninth clause.
They do not think there is an alternative, but the other causes also need examination
if only to reach for remedies.
The Tradition
Much has been made of the colonial tradition of our police. During the Raj the police, as an
instrument of the executive, were an instrument of oppression by the rulers, the people
were meant to be oppressed, surprised, beaten up, tortured, lathi charged and fired upon,
particularly if they opposed the sarkar or any instrument of it. After Independence they
failed to learn that they are not merely instruments of the government but also the servant
of the people and that in a democracy dissent is valid indeed required. During the struggle
for independence, there were hardly a known congressmen or public injury or mental
humiliation at the hands of the police, but in dealing with the terrorists and conspirators, the
police methods were more harsh and severe
30
.
Thus something I there in the 'traditional' explanation but its tenacious hold on
police behavior, more than thirty five years after independence and democracy is per se

30 Report of U.P Police Commission 1960- 61 P- 2.

21
baffling. Putting the entire blame on the past, it must be admitted, is an explanation
convenient for all accused
31
.
The Subculture
The police subculture is the sociological side of the same coin but appears
scientific and academic rather than historical amounts to be the belief that a policeman
reacts to a situation in a manner peculiar to him as a policeman and thus different and
identifiable from how other people would react to the same situation. The subculture of our
police includes brutality. The police subculture is strengthened by alienation, cynicism,
law esteem in society, a degree of pariah felling, conflicting demands made of policemen,
inconsistent judgment of their work, all forcing them in to corner, their backs to wall
32
.
But alienation is a common feature of the police all over the world. One peculiar
problem is that no value system, within the subculture is allowed to develop on account of
role conflict, conflicting standards of judgment and a steady dehumanization that affect all
policemen.
The dehumanization results largely from the compulsion of job performance, the
role that they have to perform regardless of what is proper, lighter expected by law and
society. The result is cynicism.
Policemen from apparently good families very rapidly pick up that what the law
requires is one thing but what has actually to be done to obtain results is another, the law is
that third degree is not permitted, but in practice that is the only way. Very often the people
themselves expect the police to beat up goondas and when this is not done, charges of
bribery and corruption are hurled. People complaint that police are partial in their conduct,
but policemen learn that while under the law all are equal, as things happen, a rich man is

1986, p. 51.
1986, p. 52.

22
different from a policeman or one who has the support of a politician, a bureaucrat different
from an ordinary citizen
33
.
During the course of handling the agitation, policemen also suffer injuries but at the
end of it all while cases against trendy elements who had burnt buses, destroyed private and
public property and assaulted and hurt policemen on duty are withdrawn, amounting
demand is made for a judicial inquiry against police brutality.
During occasions of collective distress such as natural calamities, Policemen work
day and night to render whatever assistance they can put, as they perceive the situation,
there is seldom any appreciation shown by either the people or the press. The same happens
on occasions of religious festivals, fairs and miscellaneous public gatherings. If out of a
hundred things one thing goes wrong that alone is highlighted and even an enquiry is
instituted which generally causes enormous harassment. When policemen kill dacoits in
encounters, the hearts of the learned bleed for the dead dacoits that they were killed in fake
encounters, but when dacoits kill policemen no one has a word to say even in sympathy and
the announcement of a grant to the family of Rs.5000/- is supposed to suffice.
Brutal behavior is inevitable consequence. Most police officers in India hate their
job and would not like their children to be policemen.
In fact the dehumanization of policemen, the creation of cannibal class whose
occupation is to move with the drags humanity, to experience in depth the most odious
evils of society is the real cost of policing and one that is seldom worked out. Compared to
this the budget figures are a grotesque irrelevance.
Pressure
A very important reason for the continuing brutal behavior of policemen is pressure.
The sources of pressure are several but basically they relate to performance or output
beyond the narrow confines of police relend inspite of the constraints an adequate role

1986, p. 53.

23
performance. Policemen are out on the road so they deal with crime and disorder not on
bits of paper but in the raw, directly. This generates enormous pressure both from the
people and the government. If dacoities increase, if people in villages cannot sleep out of
fear of dacoits, if public buses are looted, the passengers robbed en masse at the point of
knife or the muzzle of a gun, the cry is for police action, the advocacy, all parts of the same
system, have a role is not even thought of. It is for the police to control dacoities, they
cannot hide behind the plea that arrested dacoits are repeatedly released on bail. That no
sane person would give evidence against a dacoit so that acquittal from a court of law is a
foregone conclusion. That in the adversary system of trial that we have truth is not the
concern of lawyers as even if they know their client is guilty had killed a man or raped a
woman, their task, as defence lawyers, is to secure his acquittal
34
.
In addition to the constraints of the system are the constraints arising out of its
actual operation. There are many ways in which the outcome of police effort depends on
what other subsystems do. Simple delays can render in fructuous the entire police efforts as
they lead to deterioration of evidence and thereby reduce the chances of conviction in a
court of law. Medical and legal reports are often received very late. In one state a field
study found that post mortem reports of murder cases had not been received by the police
even after the lapse of a year. Test identification parades are often delayed considerably
various courts have that a delay of two months, sometime seven up to 20 days, between the
arrest and holding of the test identification parade defeats the purpose of such a parade
35
.
Securing conviction in a court of law also depends upon the availability of witness
and how steadfast they are as things are our system of investigation and trial positively
discourages any citizen from participating in it as a witness and even if a person does agree
to be a witness enormous pressures are mounted upon him by the accused to change his
testimony. These pressures range from straight offers of money many witness, threats and
intimidation by the accused who is most likely to be o bail to delay in trial due to frequent

1986, p. 54.
1986, p. 55.

24
adjournments sought by defence lawyers until such times the witness realizes that he would
continue to be harassed by frequent summons for appearance in the Court until he is willing
to terminate the case by changing his evidence. In our system, a person is presumed
innocent will be proved guilty and onus to prove lies upon the prosecution. This
presumption of innocence gives rise to constitutional and legal rights
38
.
Lust of money
This is most hateful reason for brutality and one that seems to be on the increase. At
the level of the police station a number of policemen use brutality to extract money from
suspects and innocent persons. The legal situation and nature of evidence facilitate the
process of making the station house officer very powerful and giving what he does an air of
finality. This air of finality gives him the unintended power to extract money and escape
the correlative process of supervision. Directly from the law of the land he derives his
powers not from senior officer.
Stress
In India, the presence of stress among policemen is felt but not recognized as the
major enemy of law enforcement professionals as yet. Media reports of police brutality and
indiscipline can be perceived as warning signs of job stress, emphatically pointing to the
mismanagement of this crucial problem so far. Job stress is phenomenon which is
unmistakably part of mankind is work environment. The policemen's work environment
also does not escape from this reality. Though work stress is not necessarily a negative
phenomenon and if managed purposely can be instrumental to effective performance
excessive stress can produce adverse affects and thus needs to be prevented. Especially
with regard to a vital social agency like the police, the negative implications of
occupational stress assume greater significance
36
.
Society views the police not only as a law enforcing agency but also as an
instrument of social service, an agent of social change and the protector of the rights and

36 Dr. Pragya Mathur, Stress in police in India , Gyan Publishing House, New Delhi, 1990, p.9.

25
duties of the people. The numerous incidents of police brutality and high handedness
excessive use of physical violence and verbal abuse, negative image of the police as being
discourteous, in human, sadistic and in efficient prompt a curious observer to look beyond
the surface and discover the underlying strain that exists. The highly paradoxical nature of
the policemen's job makes it like tightrope walking and deserves a closer security than is
accorded to it so far in our country
37
.
With the growing incidents of crime and widening role expectations the mental and
physical health of police personnel assumes greater significance than before. Stresses may
be triggered from social change, economic conditions, police organization, and the total
criminal justice system, the demands made on policemen's time and of their families who
are also experiencing stress, the job of policemen in general and from the cumulative and
interactive effects of these stressors
38
.
Neglected family life
The policeman's neglected family deserves more attention than it has received so far
in studies related to the police. A heavy toll is exacted from the wives children and relatives
of police personnel by the stressful aspects of police work. Kroesal (1974) in their survey
of 81 married police officers found that 79 of them felt police work had an adverse effect
on their home life. It is important to recognize that the spouse and family are significant
contributors to the success or failure in a law enforcement carrier. Marital and family strife,
discard and unresolved emotional problems can negatively influence the police officer's
development motivation, productivity and effectiveness. An unsatisfactory home life can
adversely affect there job performance and dealing with the public. An urgent need to
identify and overcome difficulties leading to marital discard and conflict among police
personnel in India exists
39
.

39 Dr. Pragya Mathur, Stress in police in India , Gyan Publishing House, New Delhi, 1990, pp. 29-30

26
Job Boredom
Law enforcement has often characterized as entailing much boredom. Long periods
of physical inactivity and repetitive work may induce boredom. Cooper and Marshall
(1976) emphasized the vital interaction of the job with the employee and that measures of
overload and under load stem from the worker's perceptions
40
.
Quantitative work overload
Work overload is also a reason of a stress. In India, the strength of police personnel
per unit population of 1000 was observed to be 1.4. The National Institute of Mental Health
and Neuro Science (Bangalore) submitted a report 1996 to the BPRSD on mental health
problems among police personnel. Almost three fourths of the policemen pointed out that
dependence on alcohol and intoxicating substance abuse is a necessary evil for tern since
they have to toil for more than 12 hours daily without weekly offs
41
.
The excessive amount of paper work, the disproportionate number of cases handled
per police station and the quantitative overload is too well known in India to deserve
lengthy discussion here.
As compared to the US and UK the policemen in India is carrying a burden much
heavier than he is trained or expected to.
Noxious Physical Environment
The physical work environment of the police exposes them to dangerous equipment,
high levels of air pollution that are too hot and too cold, exposure to excessive noise and
has also been included in the present study as a stressor. According to a study conducted by
central road Research Institute and the All India Institute of Medical Sciences (1990)
Traffic policemen exposed for long hours to artho exhaust gases suffer from lung


27
disorders, reduced breathing capacity excessive carbon monoxide in blood and several
other ailments
42
.
Hindustan times, (13-12-1990), policemen are a high risk group exposed to a
physical working environment which also deserves greater attention than it has received so
far.
Communication Quality
Relations with superiors, complaints about administration such as police concerning
work assignments procedures and personal conduct and braking support of patrolmen
including the relationship and report between patrolmen and administrators are included in
the area of communication quality. The quality of interaction and exchange of information
play a key role in the world of work of a police officer. Styles of supervision,
communication vary tremendously. Clarity of communication regarding job expectations
defines the communication quality
43
.
Praise
Recognition and compensation, incentive or reward for work well done is extremely
limited in law enforcement. One can count on being reprimanded for poor performance,
but good performance some how stands as the norm of expected behaviour. A negative
public image, insensitive handling and complaints against the police by the public further
compound the issue of lack of recognition. Neither the law salary, nor the facilities/ made
available to the personnel, nor the treatment meted out by senior personnel, provided
adequate compensation for the high stress job done by the ordinary policeman. Personal
effort is rarely accorded due recognition and outstanding performance rarely receives any
attention the administration
44
.

42 Dr. Pragya Mathur, Stress in police in India , Gyan Publishing House, New Delhi, 1990, p. 31.
43 Dr. Pragya Mathur, Stress in police in India , Gyan Publishing House, New Delhi, 1990, p. 32.

28
Reward Inequity
Most policemen believe that what they do is important, but they are also very
conscious of important, but they are also very conscious of their law social status and the
public opinion of them Cterrito and Vettor, (1981), given the amount of effort both in terms
of time and energy, the policeman gets inadequate reward. The police with 28 other
stressed occupations and found that the police showed the greatest degree of dissatisfaction
with their pay.
Role Ambiguity
Most of those who have analyzed the police role have noted that on the street level the
jobs are fraught with contradictions and in consistencies. There is uncertainty about the
scope and responsibilities of the job and the expectations of coworkers. Expect for general
statements like enforce the law and maintain order, the duties of the police officer depend
upon such diverse factors as the oath of office, the law court decisions, departmental
policy, in formal quota systems, the political climate, community pressures, common sense
and personality of the chief of police.
Tackling Problem of Custodial Violence:
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

29
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.
45

45
Sube Singh v. State of Haryana 2006-Cr.L.J -1242 -SC

Causes and Concept of Custodial Violence

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