Death by Negligence in Police Custody
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Ques: What punishment is prescribed for the police officer having the custody of the accused if he/she dies due to negligence? What is the punishment if the person doesn’t die but suffers and his/her fundamental rights are violated knowingly by the officer? Give an example of this situation.
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Section 55A of the Criminal Procedure Code discusses in detail about the conditions and custody of the accused.
There are various crimes that can be committed when the accused is in custody such as – violence, murder, rape, culpable homicide, abetment to suicide, etc. Section 304 of Indian Penal Code, [Here after referred as IPC] states the punishments wherefore a police officer can be charged and punished for custodial death. Except for murder, he is liable for ‘culpable homicide not amounting to murder’ under this. Custodial death is defined as the death of a person due to any form of torture or cruel, inhuman or degrading treatment by the police officers, whether it occurs during investigation, interrogation or otherwise.
There is a Commission named the Law Enforcement and Conduct Commission which has been empowered with the task of investigating about the death of accused in the custody of the police officer. They have been appointed for the task of reducing the numbers of crimes committed by police officers in India. The number of merely custodial deaths is about five persons dying daily in 2019-2020. This rate is huge and depressing especially in a democratic country like India where ‘rule of law’ is of much importance.
As to answer the question posed here, Section 304(A) of IPC provides details about ‘causing death by negligence’. It is as follows:
304A. Causing death by negligence – Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
The police officer will be liable for punishment under section 306 of IPC for abetment of suicide if proved guilty of it. A punishment is also prescribed for voluntarily causing hurt under IPC Sec 330 and 331.
The magistrate is the one holding inquiry under section 176(1A) of CrPC. He investigates the police officer under whose custody the accused died. The death of the accused has to be conveyed/ reported and his/her body should be sent to the nearest civil surgeon for further investigation within 24 hours of death.
A sad example of this case is the Custodial death of P Jayaraj and Bennicks of Thoothukudi (Tamil Nadu). In this case, the father and the son both were beaten to death by the police officers. The alleged charge was of lockdown violation which would have prescribed the punishment of imprisonment of maximum three months; if they were found guilty.
This case is a horrible reminder of custodial deaths. Police officers ought to remember their limits and that the accused are also humans. They are entitled to all the basic human and fundamental rights even when in custody. Also, the families of the victims need to get good compensation for their irrecoverable loss because compensations in these cases are hilarious.
There is a web-series named “Illegal” which is generating awareness about custodial deaths and tortures. It is a good source to know about the real happenings taking place these days!If an accused dies due to the negligence of the police while he is in the custody of the police officer would be called custodial death. Section 55A of Criminal Procedure Code,1973 states” Health and safety of arrested person”. It says that it shall be the duty of the person having custody of an accused to take reasonable care of the health and safety of the accused. Which implies that every accused has a right to be reasonably taken care of as far as his health and safety is concerned.
The reasons why custodial deaths take place is because Police officers are the primary investigating agency and they are burned with cases. Police officers are working on deadlines and in order to complete those deadlines they resort to violence and tortures in order to get essential information or confession from the accused. In some cases this torture leads to the death of the accused resulting in Custodial deaths.
The National Human Rights Commission has issued guidelines to be followed in case of custodial death. They have also issued guidelines for Magisterial inquiry in Custodial death cases.
If an accused dies due to the negligence of the police officer, the police officer can be charged under Section 304A of Indian Penal Code,1860 which talks about “ Causing Death by Negligence”- Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
If the accused does not die by suffering at the hands of the police officer, the officer doing so can be charged for causing grievous hurt. Police officers can also be charged under sections 330 and 331 of Indian Penal Code. Section 330 states Voluntarily causing hurt to extort confession, or to compel restoration of property. Section 331 states Voluntarily causing grievous hurt to extort confession, or to compel restoration of property.
Accused persons fundamental rights are also infringed when a police officer tortures the person for confession. Article 14 of the Indian Constitution involves equality of all the people before the law and also Article 21 which talks about Right to life and personal liberty gets violated when Police resorts to such confession techniques. The Accused can approach the High Court or the Supreme Court under Article 32 for protection of his fundamental rights. When a person is under police custody it does not mean that he loses his fundamental rights.
Example: A landmark Supreme court case is D. K Basu v. State of West Bengal(1997), wherein the horizons of the meaning of fundamental rights were broadened. The Court was of the opinion that custodial violence, including torture and death in lock-ups, strikes at the rule of law. Custodial violence, including torture and death in prisons, was considered by the court to be one of the worst crimes in a civilized society governed by the rule of law.Reference was made to the case of Neelabati Bahera v. State of Orissa (1993) in which the Supreme Court had held that prisoners and detainees are not deprived of their Fundamental Rights under Article 21 and only the restriction permitted by law could be imposed on the enjoyment of the Fundamental Rights of prisoners and detained.
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