Legal Essays and Articles

  • Article Posted By: lochangupta Posted on : 4/17/2015 12:00:00 AM

    Compensation for custodial death and contravention of human rights by State

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    The biggest road block to action on genocide and other human rights crimes is ignorance. Most people just don’t know that such things are happening and often, if they have a vague idea what is happening, there is a feeling that there is nothing that can be done to stop these crimes.”

    – John Prendergast


    According to National Human Rights Commission, there were 440 cases of alleged fake encounters in the Country during 2002-2008. Most of these happened in States of UP(231), Rajasthan(33), Maharashtra(31), Delhi(26), Andhra Pradesh(22), Uttranchal(19). From 2009-2010 to February 2013, NHRC recorded 555 cases of alleged fake encounters. The States with high number of cases were UP(138), Manipur(62), Assam(52), West Bengal(35) and Jharkhand(30).[1]

    Every deprivation of liberty or physical restraint is not arrest. Only the deprivation of liberty by legal authority or at least by apparent legal authority, in a professionally competent and adapt manner amongst to arrest. Further, when the restraint is total and deprivation of liberty is complete that would amount to arrest. Thus, arrest means ‘apprehension of a person by legal authority resulting in deprivation of its liberty.’

    The Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, 1988 (United Nations), defines arrest as “the act of apprehending a person for the alleged commission of an offence or by the action of an authority.” In one of the publications of United Nations Programme on Crime Prevention and Criminal Justice, arrest has been defined as “the act of depriving a person of his liberty under government authority for the purpose of taking that person into detention and charging the person with a criminal offence.”

    In State of Haryana v Dinesh Kumar[2] the Apex Court observed that the expression ‘arrest’ has neither been defined in the Code of Criminal Procedure nor in the Indian Panel Code or any other enactment dealing with criminal offences. The only indication as to what would constitute arrest may perhaps be found in Sec. 46 of the Code, which describes the mode in which arrests are to be made. The Court cited the meaning of arrest given in Halsbury’s Law of England:“ The word ‘arrest’ when used in ordinary and natural sense, means the apprehension or restraint or the deprivation of one’s personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases, when used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. The essential element to constitute an arrest in the above sense are that there must be an intent to arrest under the authority, accompanied by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested.”

    Instances have come to the notice where the police has arrested a person without warrant in connection with the investigation offence without recording the arrest and arrested person has been subjected to torture to extract information for the purpose of investigation, under such circumstances injury caused on the body of the arrestee has sometimes resulted in his death- custodial death.[3]

    In Joginder Kumar v State of U.P.[4] the apex court ruled that an arrested person being held in custody is entitled, if he so requests, to have one friend, relative or other person interested in his welfare, told that he has been arrested and where he is being detained. The police officer shall inform the arrested person when he is bought to the police station of this right. An entry shall be required to be made in the diary as to who was informed of the arrest. The Magistrate is obliged to satisfy himself that these requirements have been complied with.

    It emerges from the above discussion that arrest is not a ‘must’ in a cognizable offence. However, the Allahabad High Court (a full bench of 5 judges) has held that on disclosure of a cognizable offence, the arrest for the offender is a ‘must’.[5]

    The frequent instances of police atrocities and custodial deaths have prompted the Supreme Court to issue the following directions in D.K.Basu v State of West Bengal[6] to be followed in all the cases of arrest or detention till legal provisions are made. These requirements are in addition to the constitutional and statutory safeguards and do not detract from the various other directions given by the courts from time to time in connection with the safeguarding of the rights and dignity of the arrestee. The directions are:

    1. The police personnel carrying out the arrest and handling the interrogation should bear an accurate and clear identification and name tags with their designations.
    2. The police officer carrying out the arrest shall prepare a “memo of arrest” at the time of arrest and such memo must be attested by at least one witness (a member of arrestee’s family or a respectable person from the locality from where arrest is made). It shall also be countersigned by the arrestee and shall contain the time and date of arrest.
    3. A person who has been arrested/ detained shall be entitled to have one friend/ relative/ other person known to him or having interest in his welfare being informed as early as possible.
    4. The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend/ relative of arrestee lives outside the district/ town through the Legal Aid Organization in the District and the police station of area concerned telegraphically within a period of 8-12 hours after the arrest.
    5. The arrestee must be aware of his right to have someone informed of his arrest/ detention as soon as he is put under arrest/ detained.
    6. An entry must be maintained in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the arrestee who has been informed of the arrest and the name and particulars of the police officials in whose custody the arrestee is.
    7. The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any present on his/ her body, must be recorded at that time. The “Inspection Memo” must be signed by the arrestee and the police officer and its copy provided to arrestee.
    8. The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the State/ U.T. The director should prepare such a panel for all tehsils and districts as well.
    9. Copies of all the documents including the memo of arrest should be sent to the Area Magistrate for his record.
    10. The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.

    “Torture” is the systematic and deliberate infliction of acute pain in any form by one person on another, or on a third person, in order to accomplish the purpose, the former against the will of the latter [ International Legal Experts]. In D.K. Basu case (above), the apex court observed: “custodial violence (torture, rape, death in police custody/ lock-up) is a matter of deep concern. It infringes Art. 21 of the Constitution as well as basic human rights and strikes a blow at rule of law.” It may be noted that there are no specific provisions in the Code[7] against custodial torture.

    In Sunil Batra v Delhi Admn.[8], the apex court observed that the most important right of an imprisoned person  is the integrity of his physical person and mental personality. The court hurled against the “bar fetters” and “solitary confinement” (unless it is absolutely necessary to do so). In Prem Shankar v Delhi Admn.[9], it condemned the “handcuffs” in chaining the prisoners. Even where, in extreme circumstances (viz. the accused is dangerous or desperate), handcuffs become necessary the escorting officer must record the reasons for doing so. In Sheela Barse v State of Maharashtra[10], the apex court took note of the custodial violence to women lodged in police lock-up. It directed that there should be lock-ups in good localities exclusively for female suspects. Further, the interrogation of the female suspects should be carried only in the presence of female police officers.

    In D.K. Basu case (above), the apex court noted that the right to interrogate the detenus, culprits or arrestees in the interest of the nation must take procedure over an individual’s right to personal liberty [Salus populi/ republicae suprema lax- safety of the people/ State in the supreme law]. The State’s action, however, must be “right, just and fair”. Interrogation though essential must be on scientific principles and third-degree methods are totally impermissible. To check the abuse of police power transparency of public action and accountability are two possible safeguards. The police force needs to be infused with basic human values and made sensitive to the constitutional ethos. With a view to bring in transparency, the presence of counsel of the arrestee at some point of time during interrogation may deter the police from using third-degree methods.

    Compensation is a tangible expression of the State’s sympathy and concern towards the victims of the abuse of power. Under Sec. 357 (3) of the Code[11], the criminal courts can award unlimited amount of compensation to the victims at the time of passing judgment of conviction. This provision is not ancillary to other provisions of the Code but in addition thereto. Further, this provision cannot be invoked for awarding compensation to the victim, where the accused persons are acquitted of the charge on benefit of doubt or on any technicalities of law. It is only when the accused is convicted, that the victim can get compensation.

    There is no other express provision in the Code or the Constitution for grant of compensation for violation of a fundamental right to life or personal liberty. The Supreme Court has, however, judicially evolved a ‘right to compensation’ in such cases. While the remedy of compensation flows from the significant content of Art. 21 of the constitution, the power to award compensation flows from Art. 32/226[12].

    In D.K.Basu (above), the Supreme Court observed:”The award of compensation is a remedy available in public law since the purpose of public law is not only to civilize public power but also to assure the citizens that they live under a legal system wherein their rights and interests shall be protected and preserved.” In PUCL v Union of India[13], the apex court awarded a sum of Rs. 1 Lakh to the families of each of the deceased killed in a ‘fake encounter’ by the police.

    Lastly, the Criminal Justice System is a cruicial part of judicial system of our Country which was instituted to provide justice to the innocent and punishment to the guilty as implicit in the statement by the Supreme Court that “ Even convicts, prisoners and under trials have right under Art. 21 and only such restrictions can be imposed as permitted by law.”[14]



    [2] (2008) 3 SCC 222


    [4] (1994) 4 SCC 260

    [5] VINOD NARAIN (Dr.) V STATE OF U.P., 1996 CrLJ 1309(ALL)

    [6] (1997) 6 SCC 642


    [8] AIR 1980 SC 1579

    [9] AIR 1980 SC 1535

    [10] AIR 1983 SC 378

    [11] Supra 7


    [13] AIR 1997 SC 1203)


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