TMI Blog1996 (12) TMI 350X X X X Extracts X X X X X X X X Extracts X X X X ..... ressor or the offender, as awarding appropriate punishment for the offender, as awarding appropriate 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 duty bound to do. - WRIT PETITION (CRL) NO. 592 OF 1987 - - - Dated:- 18-12-1996 - KULDIP SINGH AND A.S. ANAND, JJ. JUDGMENT DR. ANAND, J. The Executive Chairman, Legal Aid Services, West Bengal, a non-political organisation registered under the Societies Registration Act, on 26th August, 1986 addressed a letter to the Chief Justice of India drawing his attention to certain news items published in the Telegraph dated 20, 21 and 22 of July, 1986 and in the Statesman and India express dated 17th August, 1986 regarding deaths in police lock-ups and custody. The Executive Chairman after reproducing the new items submitted that it was imperative to examine the issue in depth and to develop "custody jurisprudence" and formulate modalities for awarding compensation to the victim and/or family members of the victim for attrocities and death caused in police custody and to provide for accountability of the efforts are of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vi, senior advocate was requested to assist the Court as amicus curiae. Learned counsel appearing for different States and Dr. Singhvi, as a friend of the court. presented the case ably and though the effort on the part of the States initially was to show that "everything was well" within their respective States, learned counsel for the parties, as was expected of them in view of the importance of the issue involved, rose above their respective briefs and rendered useful assistance to this Court in examining various facets of the issue and made certain suggestions for formulation of guidelines by this court to minimise, if not prevent, custodial violence and kith and kin of those who die in custody on account of torture. The Law Commission of India also in response to the notice issued by this Court forwarded a copy of the 113 th Report regarding "injuries in police custody and suggested incorporation of Section 114-B in the India Evidence Act." The importance of affirmed rights of every human being need no emphasis and, therefore, to deter breaches thereof becomes a sacred duty of the Court, as the custodian and protector of the fundamental and the basic human rights of the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undergoes within the four walls of police station or lock-up. Whether it is physical assault or rape in police custody, the extent of trauma a person experiences is beyond the purview of law. "Custodial violence" and abuse of police power is not only peculiar to this country, but it is widespread. It has been the concern of international community because the problem is universal and the challenge is almost global. The Universal Declaration of Human Rights in 1984, which market the emergency of worldwide trend of protection and guarantee of certain basic human rights, stipulates in Article 5 that "No one shall be subjected to torture or to curel, inhuman or degrading treatment or punishment." Despite the pious declaration, the crime continues unabated, though every civilised nation shows its concern and takes steps for its eradication. In England, torture was once regarded as a normal practice to ger information regarding the crime, the accomplices and the case property or to extract confessions, but with the development of common law and more radical ideas imbibing human though and approach, such inhuman practices were initially discouraged and eventually almost done away with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inimised there to a very great extent. Fundamental rights occupy a place of pride in the India Constitution. Article 21 provides "no person shall be deprived of his life or personal liberty expect according to procedure established by law". Personal liberty, thus, is a sacred and cherished right under the Constitution. The expression "life of personal liberty" has been held to include the right to live with human dignity and thus it would also include within itself a guarantee against torture and assault by the State or its functionaries. Article 22 guarantees protection against arrest and detention in certain cases and declares that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest and the shall not be denied the right to consult and defend himself by a legal practitioner of his choice. Clause (2) of Article 22 directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the Magistrate. Article 20(3) of the Constitution lays down that a person accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. A reading of the morning newspapers almost everyday carrying reports of dehumanising torture, assault, rape and death in custody of police or other governmental agencies is indeed depressing. The increasing incidence of torture and death in custody has assumed such alarming proportions that it is affecting the creditibility of the Rule of Law and the administration of criminal justice system. The community rightly feels perturbed. Society s cry for justice becomes louder. The Third Report of the National Police Commission in India expressed its deep concern with custodial demoralizing effect with custodial torture was creating on the society as a whole. It made some very useful suggestions. It suggested : ".......An arrest during the investigation of a cognizable case may be considered justified in one or other of the following circumstances :- (1) The case involves a grave offence like murder, dacoity, robbery, rape etc., and it is necessary to arrest the accused and bring his movemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 5 days and if at all he was not in detention then why was this Court not informed. Were important questions which required an answer. Besides, if there was detention for 5 days, for what reason was he detained. The Court therefore, directed the District Judge, Ghaziabad to make a detailed enquiry and submit his report within 4 weeks. The Court voiced its concern regarding complaints of violations of human rights during and after arrest. It said: "The horizon of human rights is expanding. at the same time, the crime rate is also increasing, Of late, this Court has been receiving complaints about violations of human rights because of indiscriminate arrests. How are we to strike a balance between the two? A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding with comes first-the criminal or society, the law violator or the abider... ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... great responsibility on the police or prison authorities to ensure that the citizen in its custody is not deprived of his right to life. His liberty is in the very nature of things circumscribed by the very fact of his confinement and therefore his interest in the limited liberty left to him is rather precious. The duty of care on the part of the State is responsible if the person in custody of the police is deprived of his life except according to the procedure established by law. Instances have come to out notice were the police has arrested a person without warrant in connection with the investigation of an offence, without recording the arrest, and the arrest person has been subjected to torture to extract information from him for the purpose of further investigation or for recovery of case property or for extracting confession etc. The torture and injury caused on the body of the arrestee has sometime resulted into his death. Death in custody is not generally shown in the records of the lock-up and every effort is made by the police to dispose of the body or to make out a case that the arrested person died after he was released from custody. Any complaint against such tortu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation under Section 174 Cr.P.C. He summoned Ramesh Chandra and Goverdhan respondents to the spot and in their presence prepared a panchnama EX. P/27 of the dead body recording the opinion therein to the effect that no definite cause of death was known. The First Additional Sessions Judge acquitted all the respondents of all the charges holding that there was no direct evidence to connect the respondents with the crime. The State of Madhya Pradesh went up in appeal against the order of acquittal and the High Court maintained the acquittal of respondents 2 to 7 but set aside the acquittal of respondent No. 1, Shyamsunder Trivedi for offences under Section 218, 201 and 342 IPC. His acquittal for the offences under Section 302/149 and 147 IPC was, however, maintained. The State filed an appeal in this court by special leave. This Court found that the following circumstances have been established by the prosecution beyond every reasonable doubt and coupled with the direct evidence of PWs 1, 3, 4, 8 and 18 those circumstances were consistent only with the hypothesis of the quilt of the respondents and were inconsistent with their innocence : (a) that the deceased had been brough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to directly implicate them with the torture. The Courts, must not loose sight of the fact that death in police custody is perhaps on of the worst kind of crime in a civilised society, governed by the rule of law and poses a serious there at to an orderly civilized society." This Court then suggested : "The Courts are also 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 case of custodial crime so that as far as possible within their powers, the guilty should not escape so that the victim of crime has the satisfaction that ultimately the Majesty of Law has prevailed." The State appeal was allowed and the acquittal of respondents 1, 3, 4 and 5 was set aside. The respondents were convicted for various offences including the offence under Section 304 Part II/34 IPC and sentenced to various terms of imprisonment and fine ranging from Rs. 20,000/- to Rs.. 50,000/-. The fine was directed to be paid to the heirs of Nathu Banjara by way of compensation. It was further directed : "The Trial Court sha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gation with that view to solve the crime. End cannot justify the means. The interrogation and investigation into a crime should be in true sense purpose full to make the investigation effective. By torturing a person and using their degree methods, the police would be accomplishing behind the closed doors what the demands of our legal order forbid. No. society can permit it. How do we check the abuse of police power? Transparency of action and accountability perhaps are tow possible safeguards which this Court must insist upon. Attention is also required to be paid to properly develop work culture, training and orientation of police force consistent with basic human values. Training methodology of the police needs restructuring. The force needs to be infused with basic human values and made sensitive to the constitutional ethos. Efforts must be made to change the attitude and approach of the police personal handling investigations so that they do not sacrifice basic human values during interrogation and do not resort to questionable form of interrogation. With a view to bring in transparency, the presence of the counsel of the arrestee at some point of time during the interrogati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. It is felt in those quarters that if we lay to much of emphasis on protection of their fundamental rights and human rights such criminals may go scot-free without exposing any element or iota or criminality with the result, the crime would go unpunished and in the ultimate analysis the society would suffer. The concern is genuine and the problem is real. To deal with such a situation, a balanced approach is needed to meet the ends of justice. This all the more so, in view of the expectation of the society that police must deal with the criminals in an efficient and effective manner and bring to book those who are involved in the crime. The cure cannot, however, be worst than the disease itself. The response of the American supreme Court to such an issue in Miranda Vs. Arizona, 384 US 436 is instructive. The Court said : "A recurrent argument, made in these cases is that society s need for interrogation out-weighs the privilege. This argument is not unfamiliar to this Court. See. e.g. Chambers v. Florida, 309 US 227, 240-41, 84 L ed 716, 724, 60 S Ct 472 (1940). The whose thrust of out foregoing discussion demonstrates that the Constitution has prescribed the rights of the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t cannot justify the violation of this human rights expect in the manner permitted by law. Need, therefore, is to develop scientific methods of investigation and train the investigators properly to interrogate to meet the challenge. In addition to the statutory and constitutional requirements to which we have made a reference, we are of the view that it would be useful and effective to structure appropriate machinery for contemporaneous recording and notification of all cases of arrest and detention to bring in transparency and accountability. It is desirable that the officer arresting a person should prepare a memo of his arrest on witness who may be a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. The date and time of arrest shall be recorded in The memo which must also be counter signed by The arrestee. We therefore, consider it appropriate to issue the following requirements to be followed in all cases of arrest or detention till legal provisions are made in that behalf as preventive measures : (1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he concerned Stare or Union Territory. Director, Health Services should prepare such a penal for all Tehsils and Districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the illaga Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and state headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous notice board. Failure to comply with the requirements hereinabove mentioned shall apart from rendering the concerned official liable for departmental action, also render his liable to be punished for contempt of court and the proceedings for contempt of court may be instituted in any High Court of the country, having territorial jurisdiction over the matter. The requirements, referred to above flow from Articles 21 and 22 (1) of the Constitution and need to be strictl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fess the commission of a crime or to induce him to point out places where stolen property is deposited. Section 330, therefore, directly makes torture during interrogation and investigation punishable under the Indian Penal Code. These Statutory provisions are, However, inadequate to repair the wrong done to the citizen. Prosecution of the offender is an obligation of the State in case of every crime but the victim of crime needs to be compensated monetarily also. The Court, where the infringement of the fundamental right is established, therefore, cannot stop by giving a mere declaration. It must proceed further and give compensatory relief, nor by way of damages as in a civil action but by way of compensation under the public law jurisdiction for the wrong done, due to breach of public duty by the State of not protecting the fundamental right to life of the citizen. To repair the wrong done and give judicial redress for legal injury is a compulsion of judicial conscience. Article 9(5) of the International convent 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" ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication in the constitutional remedy under Articles 32 and 226 of the Constitution which enables award of compensation for contravention of fundamental rights, when the only practicable mode of enforcement of the fundamental rights can be the award of compensation. The decisions of this court in Rudul Sah and others in that line relate to award of compensation for contravention of fundamental rights, in the constitutional remedy upon Articles 32 and 226 of the Constitution, On the other hand, Kasturilal related to the value of goods seized and not returned to the owner due to the fault of government Servants, the claim being of damages of the tort of conversion under the ordinary process, and not a claim for compensation for violation of fundamental rights. Kasturilal is, therefore, inapplicable in this context and distinguishable." The claim in public law for compensation for unconstitutional deprivation of fundamental right to life and liberty, the protection of which is guaranteed under the Constitution, is a claim based on strict liability and is in addition to the claim available in private law for damages of tortious acts of the public servants. Public law proceedings serve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... amental right to life he cannot get any relief under the public law by the courts exercising Writ jurisdiction, The primary source of the public law proceedings stems from the prerogative writs and the courts have therefore, to evolve new tools to give relief in public law by moulding it according to the situation with a view to preserve and protect the Rule of Law. While concluding his first Hamlyn Lecture in 1949 under the title "freedom under the Law" Lord Denning in his own style warned : No one ca suppose that the executive will never be guilty the of the sins that are common to all of us. You may be sure that they will sometimes to things which they ought to do : and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, out procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari and actions on the case are not suitable for the winning or freedom in the new age. They must be replaced by new and up-to date machinery by declarations, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 6 of the Constitution of Trinidad and Tobago held that though not expressly provided therein, it permitted an order for monetary compensation, by way of redress for contravention of the basic human rights and fundamental freedoms. Lord Diplock speaking for the majority said: "It was argued on behalf of the Attorney General that Section 6(2) does not permit of an order for monetary compensation despite the fact that this kind of redress was ordered in Jaundoo v. Attorney General of Guyana. Reliance was placed on the reference in the subsection to enforcing, or securing the enforcement of, any of the provisions of the said foregoing sections as the purpose for which orders etc. could be made. An order for payment of compensation, it was submitted, did not amount to the enforcement of the rights that had been contravened. In their Lordships view of order for payment of compensation when a right protected under Section 1 has been contravened is clearly a form of redress which a person is entitled to claim under Section 6 (1) and may well be any only practicable form of redress, as by now it is in the instant case. The jurisdiction to make such an order is conferred o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the conclusions reached in the cases to which I have referred (and they are but a sample) is in my opinion equally valid to the New Zealand Bill of Rights Act if it is to have life and meaning." (Emphasis supplied) The Court of appeal relied upon the judgment of the Irish Courts, the Privy Council and referred to the law laid down in Nilabati Behera Vs. State (supra) thus: "Another valuable authority comes from India, Where the constitution empowers the Supreme Court to enforce rights guaranteed under it. In Nilabati Bahera V. State of Orissa (1993) Cri. LJ 2899, the Supreme Court awarded damages against the Stare to the mother of a young man beaten to death in police custody. The Court held that its power of enforcement imposed a duty to "forge new tools", of which compensation was an appropriate on where that was the only mode of redress available. This Was not a remedy in tort, but one in public law based on strict liability for the contravention of fundamental rights to which the principle of sovereign immunity does not apply. These observations of Anand, J. at P 2912 may be noted. The old doctrine of only relegating the aggrieved to the remedies available in civil l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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