Rights in Police Custody in the light of Recent Police Brutality Cases

3 Jul 2020 Read 295 Views

While there was greatuproar on social media recently regarding the George Floyd murder and police brutality on black people in the US, we have seen a considerable silence on the part of the “woke” Indian right wing figurines on the police brutality accounts in India. In the past 2 years, there has been an increase in the cases of police brutality in the prisons as well as outside prisons.

In 2018, the number of prisoners who died in prisons across India amounted to 1,845. As alarming as the number of death in India is, the causes registered for these deaths is more alarming. Most of these deaths were registered as deaths due to natural causes and others went unregistered. 

The glorification of police brutality is a usual sight on the Indian television series and Bollywood movies. High power action movies, specifically based on Police brutality, have earned Rs. 200 Crore on box office, thus normalising the trend of custodial violence. 

The Hon’ble Supreme Court of India has pronounced several judgments where they have criminalised police brutality and suggested that police officers may be punished with death penalty for these gruesome acts.

Know your rights – Rights of an Arrested Person

Every person in the country is entitled to basic human rights as enshrined under the United Nations Declaration of Human Rights. These human rights have been incorporated by the legislators in our Constitution and upheld by the Indian Judiciary through various pronouncements. These rights are available to all persons, irrespective of their gender, race, religion, place of birth, caste, etc. These human rights are also available to prisoners as well.Irrespective of whether a person is a convict or is in police custody as a suspect or a witness, they are entitled to all these human rights.

Following are some of the rights one must know, in case they get arrested:-

  1. At the outset, restraint or detention by the police without arrest is illegal. The police can arrest a person only if they have a warrant issued against that person. Only except in a few circumstances as provided in the Criminal Procedure Code (CrPC), the arrest of a person without a warrant is illegal. 

  2. Arrest without a warrant –if you are being arrested for a cognizible offence under Section 41 of the CrPC, the burden is on the police to prove your guilt before the Court. The Police can arrest you only on reasonable grounds of offence. 

  3. The police has to follow certain codes of conduct as laid down under Section 46 of the CrPC while arresting. The police cannot assert unnecessary and excessive force, in cases where force is required. 

  4. Arrest of Women – A woman can only be arrested by a woman police officer. The police officer need not touch the body, unless the situation compels. A woman cannot be arrested before sunrise and after sunset, except in exceptional circumstances and upon prior permission being obtained from the local Magistrate. 

  5. Section 49 of the CrPC provides for no unnecessary restraint. That is, the police can’t use more force than is needed to prevent escape of the person being arrested. Such force must be proportional to the force applied by the person being arrested and not more than that. 

  6. CrPC also provides for the right to know the grounds of your arrest. You have the right to ask the police to clearly state all the charges against you for getting arrested. The police must also produce the arrested person before the concerned Court within 24 hours of their arrest.

  7. The person arrested without a warrant is also entitled to be informed about the grounds of arrest and if the offence is a bailable offence, they must be informed of their right to get a bail. 

  8. The Constitution of India protects a person from self-incrimination. Meaning thereby, a person who is compelled to give self-incriminating testimony is illegal. Though an accused cannot be compelled to produce any evidence against him, it can be seized under process of law from the custody or person of the accused by the issue of a search warrant. 

  9. A confession made during police custody is not admissible in the Court of law. It is a commonly known fact that police torture has led to several people confessing to crimes during police custody. However, such a confession is inadmissible in the Court. Only a confession made in the Court of Law during the trial is admissible as evidence. 

  10. The Code also provides for a provision of medical examination of the person arrested by the police. Such an examination is compulsory and must be done by a medical officer in service of central or state government, or by registered medical practitioner, upon non-availability of such medical officer. Female arrestees can only be examined by female medical officer or registered medical practitioner.

  11. The person arrested has the right to free legal aid. The person is entitled to consult a lawyer and be defended by a counsel of their choice. 

Judicial Pronouncements enhancing protections

Recently, a father-son duo was brutally tortured by the police, while in custody, which eventually led to their deaths. They were arrested by the police for allegedly keeping their shops open post permitted hours, imposed as a measure in furtherance of the COVID-19 lockdown. It has been reported that the police officers have brutally assaulted the pair, which led to excessive bleeding and eventual death. 

The saga of such police brutality goes back to decades, such brutality may not always be physical. There have been several cases of illegal detentions and mental torture by the police. In RudulSah v. State of Bihar, the police had detained the petitioner for 14 years in the prison, even after he was acquitted by the Court. The police had grossly violated the petitioner’s rights under Articles 21 and 22 of the Indian Constitution. 

In PrakashKadam etc. v. RamprasadVishwanath Gupta and Anr., the Supreme Court had held that police officers involved in fake encounters are liable for death penalty, treating it as “rarest of rare” cases. 

The most important case with respect to police custodial brutality and ones rights related to it is the D K Basu v. State of State of West Bengal. This case laid down guidelines that every police officer needed to follow while arresting a person. 

  1. Duty if police making arrest and handling interrogation:-

  • All police personnel should wear name tag clearly indicating their name and designation.

  • Police must enter the complete details of police officials conducting interrogation in a register.

  1. Arrest Memo:-

  • The police officer making an arrest has to prepare an Arrest Memo that records details of the arrest.

  • The arrest memo must contain – 

  1. The signature of atleast one witness who can be, a relative of the arrestee or, a respectable person of the locality where the arrest is made.

  2. The time, date and place of the arrest

  • The arrested person should sign the arrest memo after it is properly prepared.

  1. Inspection Memo:-

  • If the arrested person requests, the police officer mus record any minor/major injuries on his/her body in the inspection memo.

  • The memo should be signed by the arrested person and the arresting officer.

  • A copy of memo must be given to the arrested person. 

  1. Information about arrest and detention:-

  • The arrested person has the right that his his/her relative/friend be informed about the arrest.

  • The police must contact and inform the relative/friend of the time and place of arrest, and the exact location where the arrested person is detained, at the earliest.

  • If the relative/firend is in a different district/city, the concerned police station should be informed by telegraph within 8-12 hours of the arrest and then convey the information to the relative/friend.

  • The information of the arrest should also be sent through the district legal aid committee.

  1. Daily Dairy:-

  • The police must enter the details of every arrest made in the police station daily diary.

  • The diary entry must include the name of the relative/friend who was informed about the arrest

  • The diary entry must state the name of the police officer in whose custody the arrested person is detained. 

  1. Medical Examination:-

  • The arrested person has the right to be medically examined every 48 hours during his/her detention by a trained doctor.

  • The doctor should belong to the panel chosen by Director, Health Services of the State or Union Territory. 

  • The Director must prepare the panel for all Tehsils and district headquarters. 

  1. Right to lawyer:-

  • The arrested person has the right to meet and consult a lawyer during his/her interrogation. The police cannot deny the right to lawyer. 

  1. Ilaqa Magistrate:-

  • The police must send all documents related to the arrest including the arrest memo and inspection memo to the Ilaga Magistrate for his/her record.

  1. Police Control Room (PCR):-

  • PCRs should be set up in all districts and state headquarters.

  • The arresting officer has the duty to inform the PCR about the place of detention of the arrested person.

  • The information must be sent to the PCR within 12 hours of the arrest. 

  • This information must be displayed clearly on the notice board of the control room. 

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