Conceptual aspect regarding custodial death


The word custody implies guardianship and protective care. Even when applied to indicate arrest or incarceration, it does not carry any sinister symptoms of violence during custody. No civilized law postulates custodial cruelty – an inhuman trait that springs out of a perverse desire to cause suffering when there is no possibility of any retaliation; a senseless exhibition of superiority and physical power over the one who is overpowered or a collective wrath of hypocritical thinking. It is one of the worst crime in the civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Torture in custody flouts the basic rights of the citizens and is an affront to human dignity.

Custodial death: Violative of human right  Judicial conscience recognized human rights of prisoners because of its reformist approach and the belief that convicts is also human beings and that the purpose of imprisonment is to reform them rather than to make them hardened criminals. Prisoners have human rights and prison torture is the confession of the failure to do justice to living man. For a prisoner, all fundamental rights are an enforceable reality, though restricted by the fact of imprisonment. Simply stated, the death of a person in custody whether of the Police or Judicial will amount to Custodial Death. No doubt, the police plays vital role in safeguarding our life, liberty and freedoms. But the police must act properly, showing fall respect to the human rights of the people, remembering that they are also beneath the law, not above it and can be held liable for the violation of human rights. One can always argue that prisons formed islands of lawless discretion in a society guided by the values and often the practice of the rule of law, where the authorities exercised arbitrary power over the prisoner’s lives. Now I explain about gross violation of human Rights.

Conceptual aspect regarding custodial death

Law has always discouraged the acts or omissions which in general can affect right in rem and violators have always been punished with strict sanctions but the crime rate is not falling and State is in regular quest to preserve social solidarity and peace in society.  Whenever death occurs in custody, it raises the public interest and attracts media attention. Not that at each time the death is due to violent causes but at times may be due to natural causes or due to inadequate medical facilities or medical attention and diagnosis, or negligent behavior of authorities or may be due to physical abuse and torture. Since time immemorial man has been attempting to subjugate his fellow human beings. Those in power are used to twisting and turning the people through violence and torture, and torture under custody has become a global phenomenon. Men, women and even children are subjected to torture in many of the world’s countries, even though in most of these countries, the use of torture is prohibited by law and by the international declarations signed by their respective representatives. A problem of increasing occurrence and repugnance had been the methods of interrogation and torture perpetrated upon prisoners and detainees. Persons held in custody, by police or by prison authorities, retain their basic constitutional right except for their right to liberty and a qualified right to privacy. The Magistrate inquest is mandatory for any death of a person in custody to ensure examination of the circumstances leading to death. Beyond Magistrate’s inquest and in recent year’s information to Human Right Commission, however, there is no formal public scrutiny of in-prison deaths and under such situations many avoidable factors leading to death remains unexplored.

Constitution provision regarding custodial death

In the post-Maneka era, in a cantina of cases, the Supreme Court has exposed the cruelty of the system of Prison Administration in India and has sought to humanize it. The Court has taken an active interest in seeking to improve a system which is cruel and insensitive to human pain and suffering. Time and again , the Supreme court has emphasized that Art 14, 19 and 21 ” are available to prisoners as well as freeman. And Prisoners wall do not keep out fundamental Right” Article 21 of the Constitution guarantees the right of personal liberty and thereby prohibits any inhuman, cruel or degrading treatment to any person whether he is a national or a foreigner. Any violation of this right attracts Article 14, which enshrines right to equality and equal protection of laws. Such rights are discussed in the International Covenant on Civil and Political Rights (ICCPR) as well. The Constitution recognizes it to be fundamental in the governance of the country that the State shall direct its policy to secure conditions of freedom and dignity and insulates against all forms of tyranny against mind and body and their freedom to grow fearlessly. All custodial safeguards in the constitutional and other laws are meant to protect human dignity and shun barbaric approaches. This is why no person accused of any offence shall be compelled to be a witness against himselfArt.20(3), a person is entitled to know why he is arrested for being detained in custody and to consult a legal practitioner of his choice . The right to live with human dignity enshrined in Art. 21 derives its life and breath from the directive principles of State policy particularly clauses (e) and (f) of Article 39 and Articles 41 and 42 as held by the Supreme Court in Bandhua Mukti Morcha case. Art. 142 empower the Supreme Court to ‘make such order as is necessary for doing complete justice in any cause or matter pending before it. The power of the Supreme Court under this provision is meant to supplement the existing legal framework in order to do complete justice between the parties and not to supplant it.  It is intended to prevent any obstruction in the stream of justice . The innovations made by the Supreme Court is not only reducing the multiplicity of litigation but also helping the courts to render speedy justice to victims of the infringement of right to life and personal liberty. In Nilabati Behera vs.State of Orissa, deals with the powers of arrest of a person and the safeguards which are required to be followed by the police to protect the interest of the arrested person. Section 41, Cr. PC, confers powers on and police officer to arrest a person under the circumstances specified therein without any order or a warrant of arrest from a Magistrate. Section 46 provides the method and manner of arrest. Under this section no formality is necessary while arresting a person. Under Section 49, the police is not permitted to use more restraint than is necessary to prevent the escape of the person. Section 50 enjoins every police officer arresting any person without warrant to communicate to him the full particulars of the offence for which he is arrested and the grounds for such arrest .The police officer is further enjoined to inform the person arrested that he is entitled to be released on bail and he may arrange for sureties in the went of his arrest for a non-bailable offend. Section 56 contains a mandatory provision requiring the police officer making an arrest without warrant to produce the arrested person before a Magistrate without unnecessary delay and Section 57 echoes clause (2) of Article 22 of the Constitution of India. There are some provisions also like Sections 53, 54 and 167 which are aimed at affording procedural safeguards to a person arrested by the police. In  Francis Corallie Mullin v.Union Territory of Delhi, the Supreme court has condemned cruelty  or torture as being volatile of art 21 in following words ” any form of torture and cruelty or degrading treatment would be offensive of human dignity and it would on its view , be prohibited by article 21. It would be seen that there is implicit in article 21 the right to protection against torture or cruel, inhuman which is enunciated in Article 5 of Universal Declaration of Human right  and guaranteed by Article 7 of International Covenant on Civil and Political Rights”.

Police atrocities: some concern

Custodial violence, including torture and death in the lock-ups, 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 custodial deaths are neither usual nor unknown. Such deaths take place not only in India but also in various other countries. These deaths definitely lead to custodial violence. Experience shows that worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence of confession often resort to 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 newspaper almost everyday carrying reports dehumanizing 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 credibility of the Rule of Law and the administration of criminal justice system. The community rightly feels perturbed. Society’s cry for justice becomes louder. In State of Maharashtr v. Ravi Kanth S. Patit,° held, that handcuffing and parading of an under-trial prisoner was violative of Article 21 of the Constitution. The State and not the police was asked to pay compensation to the victim. Although torture is not expressly countermanded by the Constitution, Article 21 clearly provides protecting against it.

The arrest of a person suspected of crime does not warrant any physical violence on the person or his torture. But, when the captive exercises his fundamental right to silence against self-incrimination, Art. 20(3) .During his interrogation, the police often abuse their authority by use of criminal force to extort information. Sections 330 and 331 of the Indian Penal Code provide for punishment to one who voluntarily caused hurt or grievous hurt to extort the confession or any information which may lead to detection of an offence or misconduct. “The Third Report of the National Police Commission in India expressed its deep concern with custodial violence and lock-up deaths. It appreciated the demoralizing effect which 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 the Circumstances.

The expression “life or personal liberty” in Article 21 includes a guarantee against torture and assault even by the State and its functionaries to a person who is taken in custody and no sovereign immunity can be pleaded against the liability of the State arising due to such criminal use of force over the captive person. The right to interrogate the tetanus, culprits or arrestees in the interest of the nation, must take precedence over an individual’s right to personal liberty.  The action of the State, however, must be “right, just and fair”.  As held by the Supreme Court in a case that “custodial torture” is a naked violation of human dignity and a degradation which destroys, to a very large extent human personality. Here the SC had prohibited the use of third degree methods on suspects and framed various guidelines for protecting their human rights.

The Universal Declaration of Human Rights 1948, adopted and proclaimed by the General Assembly Resolution 217A(III) of 10th December, 1948 declared in the preamble that recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world. The expression-”Human Rights” has not been specifically defined in any Declaration or Covenant of the United Nations.- Human Rights are generally defined as “those rights which are inherent in our nature and without which we cannot live as human beings” recognition of these natural rights of human beings is as ancient as the human civilization. . India was one of the signatories of the Universal Declaration of Human Rights, and acceded to the two International Covenants by depositing the Instrument of Accession of April 10, 1979. The Vienna Declaration and Programme of Action adopted on June 25, 1993, by the World Conference on Human Rights declared that “Human Rights and fundamental freedom are the birth right of all human beings”. The Human Rights are now recognized as the limits to the exercise of power by the State over individuals.

Human Rights Commission – A silver lining

The official machinery for the protection of human rights in this country was set in motion by the then President’s assent to the Protection of Human Rights Act came in to force on September 28,1993. Section 3 of the Act provides for the setting up of the National Human Rights Commission (NHRC) and Section 21 for the setting up of the various State Commissions (SHRC). The National Human Rights Commission in its Annual Report of 1997-98 records that during the year 1996-97, 188 deaths in Police Custody were reported and during the year 1997-98, 193 deaths in Police Custody, and 700 deaths and 819 deaths respectively in judicial custody were reported to the Commission. In the context of addressing the issue of custodial torture, the Commission has reiterated its earlier recommendations by soliciting early action on the suggestion of the Indian Law Commission to the effect that proposed Section 114(B) be inserted in the Indian Evidence Act to introduce a rebut table presumption that injuries sustained by a person in police custody may be presumed to have been caused by a Police Officer, as well as the suggestion for amendment in Sec. 197 of the Cr. P.C. to obviate the necessity for governmental sanction for the prosecution of a police officer where a prima-facie case has been established in an inquiry conducted by a Sessions judge in the commission of a custodial offence, as also the suggestion by the National Police Commission that there should be a mandatory inquiry by a Sessions Judge in each case of custodial death, rape or grievous hurt.

The law commission recommended in its 113th Report that in prosecution of a police officer for an alleged offence of having caused bodily injury to a person, if there was evidence that the injury was caused during the period when the person was in the custody of the police officer, the court may presume that the injury was caused by the police officer having the custody of that person during that period.  In Shyamsunder Trivedi’s case the Supreme Court also expressed that hope that the government and legislature would give serious thought to the recommendation of law commission. Unfortunately, the suggested amendment has not been incorporated in the statute so far. The need of amendment requires no emphasis, sharp rise in custodial violence, torture and death in custody, justifies the urgency for the amendment and the court invites Parliament attention to it. Here  I give some report against cutodial death.

Arrests under the Anti-Terrorism Act 2009

Human rights violations and killings along the Bangladesh-India border

Verdict of the BDR mutiny trial at Rangamati  Illegal fatwa

Odhikar defends civil, political, social, economic and cultural rights of the people and as part of its mission, observes reports and analyses the human rights situation of Bangladesh. Odhikar documents and records violations of human rights and receives information from its network of human rights defenders as well as from monitoring media reports in twelve national daily newspapers. Odhikar conducts detailed fact-finding investigations where serious violations occur. In line with this campaign, an account of the human rights situation of Bangladesh covering the period of May 2010 is presented below.

On May 28, 2010, Law Minister Shafique Ahmed claimed that crossfire Killings

have stopped. ‘No more crossfire incidents are taking place in the country. It has


During May 2010, 17 people were killed by law enforcement agencies. It has

been alleged that of these people, 07 were killed by RAB and 09 by Police and 01

person was killed by the joint operation of RAB and police. Of these 17


passed away while they were in custody of the law enforcement agencies.

Tortured to death: Among the 17 killed, 04 were allegedly tortured to death.

Allegations of death while in Police custody

On May 11, 2010, Md. Manik (38), a night-guard of the Anjuman Residential

Hotel at Reyajuddin Bazaar, 116 Station Road, Chittagong, died while he was in

custody at the Kotowali Police Station at Chittagong. Family members of the late

Manik alleged to the fact finding officer of Odhikar that SI Yunus Miah arrested

Manik on May 10, 2010 and tortured him during interrogation which caused

Manik’s death. Manik came from the village of Chorpaborti of Companyganj,


On May 13, 2010, a man named Rabiul Islam Khokon (23) died while in custody

at the Chatkhil Police Station, Noakhali. The family members of the late Rabiul

Islam alleged to the fact finding team of Odhikar that Rabiul was admitted to the

Noakhali General Hospital in a bad state after he was physically tortured by SI

Abdul Mannan of the Chatkhil Police Station who had taken Rabiul into remand.

When Rabiul’s condition deteriorated, he was admitted to the Dhaka Medical

Odhikar’s Fact Finding Report College Hospital when he passed away. Rabiul Islam Khokon came from the village of Mojjotpara of Noakhali.5

A businessman named Abul Kalam Azad (44) passed away while in custody of RAB-1. The family members of the deceased alleged that Azad had been tortured to the death by RAB. The late Azad had stopped by his son Ripon Haoladar’s

phone-fax shop at Mohakhali, in Dhaka, while he was on his way home on the

night of May 24, 2010. This was when 7-8 plain clothed men, claiming to be

members of RAB, arrived in a microbus and searched the shop. They arrested

Azad and his son. At the RAB headquarters, father and son were interrogated

separately during which Abul Kalam Azad passed away in the early hours of the

follwing day. The son of the deceased said, ‘My father died because the RAB

members had locked him up in another room and tortured him’.6

The Court has issued arrest warrants against 19 persons including 12 Police

Officers from Natore after allegations were raised regarding the torturing to death of a man named Ansar. The verdict was passed on May 10, 2010, by the

Additional Chief Judicial Magistrate. It must be mentioned here that on July 27,

2009, ASI Jasimuddin of the Shingra Police Station had filed a murder case which

stated that when a police patrol team was passing the Kakiyan forest, Ansar and

other dacoits opened fire on the police. The police returned fire which caused

Ansar’s death. Ansar’s father Rojob Ali alleged that his son had been killed in a

pre-planned manner and filed a complaint case at the Court of the Chief Judicial

Magistrate at Natore on August 17, 2009. Magistrate Mohammad Akhtaruzzaman

took cognizance of the case and directed Judicial Magistrate Mahmudul Hasan to

carry out a judicial inquiry into the incident. Magistrate Mahmudul Hasan

submitted his report following completion of the inquiry. His report stated that

Ansar died while he was in custody and his body was dropped off inside the

Kakiyan forest. The report stated further that Ansar had not been killed in

crossfire but was tortured to death while he was in custody following arrest.7

Odhikar urges that the Government bring an end to custodial deaths. Odhikar has repeatedly expressed concern over incidents relating to custodial death. It appears that despite national and international concern regarding deaths in custody, there is hardly any effective step from the government to stop such occurrences. 14. Deaths while in custody reflect a gross violation of human rights. Although Bangladesh signed the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on October 5, 1998, its principles are notbeing followed. As per this Convention, a person cannot be physically or mentally tortured or subjected to other forms of cruel, inhuman or degrading treatment or punishment. This principle is also guaranteed in Article 35(5) of the Bangladesh Constitution.

Whereabouts of a wood merchant remain unknown after being arrested by RAB

It has been alleged that at 4.30 pm on March 19, 2010, members of RAB-5

arrested Md. Akbar Ali Sardar (28), a wood merchant who did contractual work

for one Chan Miah, from Shalmondor Noula of Thakurgaon; and Bipin Chandra

Sarkar (36) coming from the same village. Both of them were picked up by RAB

from the road in front of the Salendar Bissho Islami Mission mosque. Although

Bipin Sarkar was released by RAB at 10.00 am on March 20, 2010, the

whereabouts of Akbar are still unknown. The Police of the Thakurgaon Police

Station have so far rejected attempts made by Akbar’s family to file a General

Diary (GD) or a case. Later on when Akbar’s family inquired about Akbar at

RAB-5 through the Police Superintendent of the Thakurgaon Police Station, the

RAB-5 authorities denied having arrested Akbar.8

A recent trend in the human rights scene is that plain clothed men claiming to be

members of law enforcement agencies are arresting many persons. Afterwards

many of the arrested are nowhere to be found. Some of their dead bodies are

discovered after the passing of time. The families of the victims claim that it is the members of the law enforcement agencies who are making the arrests.

Odhikar expresses deep concern over such incidents of arrest and disappearance and urges the Government to arrange for the search and rescue lost persons and also provide a statement as to what is essentially going on.

What initiative taken by Govt. to carry out illegal activities.

There is no internationally agreed definition of ‘terrorism’. Anti-terrorism laws

have been passed in various countries and through their application; human rights are being grossly violated. The recently concluded Army- supported Caretaker Government first promulgated the Anti-Terrorism Ordinance on June 11, 2008.The present Government after taking power on January 6, 2009 passed the said Ordinance as an Act in the very first session of Parliament.

On May 3, 2010, all the 49 accused from the 23 Battalion during the BDR mutiny

were brought before the Chief Metropolitan Magistrates Court at Khulna. All

these men were initially arrested under Section 54 of the Code of Criminal

Procedure due to their involvement in the mutiny during February 25 and 26,

2009. Subsequently, cases were filed against them by the OC of the Khalispur

Police Station on May 12, 2009 at the Chief Metropolitan Magistrates Court

Khulna (Case No. – CR – 50/09).23

On May 3, 2010, the process of the Dhaka BDR mutiny trials resumed. The

Tribunal directed the 187 BDR members of the Peelkhana Signals Sector and 113

members of the Rifles Security Unit to appear before it on the date of framing of

charges. The BDR- DG Moinul Islam carried out the examination-in-chiefs of

Subedar Major Ansar Ali Bir Protik of the Signals Sector and several others. The

Tribunal set December 5 as the date for the charge framing of the BDR members

of the Signal Sector and December 19 for the members of the Rifles Security

A housewife was burnt with acid, doused with petrol and set on fire after she filed for divorce. Toruna Parvin, a housewife from the village of Ilishpur of Kolorowa, Shatkhira divorced her husband Asadul Islam on the grounds of torture he inflicted upon her. The aggravation that resulted from the divorce caused Asadul Islam, his brother Emdadul Islam, neighbor Saiful Islam to lead a group of 5-6 persons to throwing acid on Toruna Parvin. They then wrapped a mosquito netaround her and spilled petrol over it which they subsequently set on fire. Toruna Pavin was admitted to the Khulna hospital in a severely injured condition where she eventually succumbed to her horrific injuries. A case has been filed at the Kolorowa Police Station. Although the police have been able to arrest Emdadul Islam and Saiful Islam, they are yet to arrest the main perpetrator Asadul Islam.

raped, 03of them were killed after being raped and 08 were victims of gang rape. Two girls allegedly committed suicide after being raped.

On May 19, 2010, a fatwa was given by three local Imams Abdur Rahim,

Abubakar and Mobarak Hossain according to which Hosna Akhtar (17) would be

whipped 101 times and kicked out of her village due to an alleged affair between

herself and Shonkor Debnath (22). Both these persons came from the village of

Purbohati of Bancharampur, Brahmanbariya. As per the fatwa, Hosna Akhtar’s

maternal uncle Md. Moinuddin began to whip Hosna who lost consciousness after

lashes. Golam Gilani, the former UP Chairman and the President of the

Fordabad Union Awami League presided over the arbitration where the fatwa was issued. violence

judicial forms of punishment. On May 24, 2010, the High Court Division also

issued a Rule asking the Government to show why the Court should not declare

extra-judicial forms of punishment in the name of fatwa and Shariya illegal. It has

also asked why articles discouraging extra-judicial punishment should not be

incorporated into text books at various levels.

Extra-judicial killings must come to an end as per the declaration made by the

Government. Those involved in such killings must be brought before justice by

the Government.

Torture in remand and other forms of custody must end.

The Government must rescue those who have been kidnapped by groups claiming

to be law enforcement agencies and also provide a clear statement on the killings

that follow kidnappings.

The Government must take effective steps to end political violence and bring

those involved to justice.

Those responsible for torturing and attacking journalists must be arrested and

brought before justice.

Odhikar strongly stands against any form of national oppression and human rights

violation and supports every effort for peaceful negotiation to resolve political


The cases that come to light reflect the cruelty with which the human beings brought in custody or control are treated by their fellow human beings. Such cruel demeanors of human beings would put to shame even wild carnivorous beasts and terrify and benumb tigers witnessing the skinning of a mighty tigress in the helpless custody of her captors supposed to protect and preserve the specie.Detection and deterrence would be the key factors for preventing the recurrence of such incidents.An efficient and independent machinery to detect such cases and prompt action to punish the erring officials can ensure some safety against custodial violence. Section 37 of the Protection of Human Rights Act, 1993 empowers the Government to constitute one or more special investigative teams consisting of such police officers as it thinks necessary for the purpose of investigation and prosecution of offences arising out of violations of human rights .The renaissance of the doctrine of natural rights in the form of human rights across the globe is a great development in the jurisprudential field in the contemporary.


[1] See 17th May, 2010 Ittefaq

See 26th April, 2010 Shamakal

See 10th May, 2010 Amar Desh

See 3rd May, 2010 Prothom Alo

See 6th May, 2010 Manab Jamin

See 2nd March, 2010 Amader Shomoy

See 29th may, 2010 New Age