Introduction
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.[1] Use of too much force and more than lawful authority by police generally causes custodial death. If torture of a suspect during police custody is subject to a crime, causing death by beating in police custody is even more dreadful crime and a most awful act. Custodial death is perhaps one of the worst crimes in a civilized society governed by the Rule of Law.[2] Criminals are also human and they obviously deserve the Rule of Law and human rights. One quote about human rights is “Close to my conceptual perception, is what a Philippine jurist of eminence, Jose W. Diokno, once observed: No cause is more worthy than the cause of human rights. Human rights are more than legal concepts; they are what make man human. That is why they are called human rights; deny them and you deny man’s humanity.”[3] Custodial violence is obviously a matter of great concern. Keep in mind that the pain and suffering that a victim suffers due to torture, the security of his life and freedom from such brutal treatment becomes the most sacred responsibility of every organ of justice delivery system. In custodial crimes, not only the infliction of body pain is worrisome, but also the trauma and mental agony which a person undergoes within the four walls of police station or lock-up.[4]
Conceptual aspect regarding custodial death
In recent reports, it has been found in the National Human Rights Commission that the custodial deaths are on the rise in many countries. Custodial deaths are very much related to the random arrest and custodial violence of the criminals. The acts is always discouraged by Law which in general can affect right and always violators have been punished with strict sanctions but still the crime rate is not yet falling and State is in regular search to maintain social solidarity and peace in society. If death occurs in custody because of torture, it definitely raises the public interest and attracts media attention more. Not always it happens for violent causes but at times may be due to some natural or other causes or due to inadequate medical facilities or medical attention and diagnosis, or bad behavior of authorities or sometimes due to physical abuse and torture.According to Art. 14 of the Convention against Torture and other cruel, in-human or corrupting treatment or penalty, the term “torture” means : (1) The intentional infliction of severe pain or suffering, whether physical or mental upon a person; (2) The infliction of pains or sufferings is caused for the purpose of; (a) obtaining information or a confession from him or a third person; or (b) intimidating or coercing him or a third person; (c) for any reason based on discrimination of any kind; (3) The information or a confession should be such as to lead to the punishment for an act which he or third person has committed or is suspected of having committed; and (4) Such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity; however; (5) Such pain or suffering does not include pain or suffering arising only from, inheritance or incidental to lawful sanctions.[5] 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 investigation is mandatory for any kind of death of a person in custody because of violation to ensure inspection of the conditions leading to death. Away from Magistrate’s investigation and in recent year’s information to Human Right Commission, still, there is no formal public scrutiny of in-prison deaths and under such situations many avoidable factors leading to death remains unexplored.[6]
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.[7]These deaths definitely lead to custodial violence.
On the other hand, regardless of the constitutional and legal provisions aimed at protection the personal liberty and life of a citizen, rapid increase in torture and deaths in police custody have been alarming factors. Recent evidence shows that worst violations of human rights take place during the course of investigation, when the policy with a view to protect evidence or declaration often routes 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 extended questioning. Now days, it is very obvious to see news in the daily morning newspaper about reports of brutal torture, assault, rape and death in custody of police or other governmental agencies is indeed miserable. The rise of torturing incident and death in custody has assumed such alarming proportions that it is affecting the reliability of the Rule of Law and the administration of criminal justice system. The community rightly feels perturbed. Society’s cry for justice becomes louder.[8] [9]
An example regarding custodial death in perspective of Bangladesh was published in The Daily Star newspaper in June 2, 2010.
No tolerance for custodial death[10]
An HC[11] bench of Justice AHM Shamsuddin Chowdhury Manik, and Justice Md Delwar Hossain sounded the warning during a public interest litigation hearing in connection with the May 11 death of Md Manik Mia in custody of Chittagong police. Manik was a security guard of Anjuman Market at Reazuddin Bazar in Chittagong; he was caught in a theft case. “We are oath bound to protect the right to life of the people as per the constitution. As long as we are here, we will maintain zero tolerance for custodial deaths,” Justice AHM Shamsuddin Chowdhury Manik, a senior judge on the bench, told lawyers and government law officers present in the courtroom. It is important to be careful and the court directed the government through the attorney general’s office about it, so no person dies in law enforcers’ custody due to physical torture. The court issued the directives after a post mortem report stated that injury marks were found on Manik’s body. The court had sought the report in response to a public interest litigation filed by HRPB[12] in connection with the death.
Uphold High Court ruling against custodial deaths[13]
Legal experts and human rights activists in the country have expressed their deep concern over continuation of custodial deaths even after the High Court has issued directions to stop such incidents (The New Nation). Some of them termed the development flippancy and some others claimed unawareness of members of the law enforcing agencies about relevant human rights laws. It has been seen that, quite a few occasions of custodial deaths have been informed to concerned authorities of the government as proper result or awareness has been seen against only a couple of incidents out of about 40 deaths in jail custody. Chairman of the BNHRC[14] Dr Mizanur Rahman has said that the Commission got some allegations of such illegal deaths. General Secretary of the SCBA[15] Barrister Badruddoza Badol expressed his astonishment at the continuous death in remand despited the HC directions to stop such deaths. Odhikar, one of the human rights body, recorded 40 citizens in the last seven months who died in jail custody and marked another 2 persons to have died in court custody and RAB custody. Earlier on June 1, the High Court warned the government regarding custodial death saying that “It (the court) will not tolerate custodial death in future.”
The following precautionary and safety actions can be suggested which shall help in the avoidance of the custodial deaths and can also prove beneficial to the families of the victim of the custodial death to defeat miseries and pains to some extent[16] –
1. The police can be trained to use new scientific and parallel and psychological prejudiced techniques instead of using torture.
2. Improvement of the working conditions of the police personnel and it is better to provide with more promotional avenues on the basis of seniority.
3. The power of control of the Police is a major fact and should be brought under the Governor of the concerned State in order that the police could have a chance to work in a clean environment free from political pressures.
A separate offence provision should be made by amending Section 302 of the Indian Penal Code regarding treatment of custodial death as murder.[17]
5. A proper amount of medical facilities should be provided in jails with the intention that in case of crisis, proper and well-timed medical help could be provided to the persons in the jail custody.
6. It is mandatory or should be allowed to be present for a counsel during questioning to check the custodial violence by investigating officer.
7. It is necessary to provide the scientific facilities/techniques to police personnel that to use during interrogation. It may be more helpful in stopping this dreadful crime.
8. The arrest of accused during interrogation may be considered justified in case of grave offences like murder, dacoity, robbery, rape etc., or when accused is likely to abscond and evade the process of law or when the accused is a habitual offender.
10. The reward in case of custodial deaths should be a State responsibility. The State Government in turn can recover the amount of compensation from the offenders. For implementing this, a separate Tribunal/Board should be set up at the District level.
11. It is important for the Government to provide medical facilities in Government hospitals free of cost to the dependants of the victim of the custodial death.
12. It will be more helpful if The Government provide free education up to graduation level to the dependants of the victim of the custodial death.
13. The Government should reserve a quota of one percent in Government jobs for at least one of the dependants of the victims.
14. The Government should reserve a quota of one percent in educational institutions for higher education for the dependants of the victims.
15. The most important requirement is to sanction a monthly pension to the dependants of the victim of custodial death because Government is liable for their miseries and sufferings.
Conclusion
From the above analysis of custodial death, it is more obvious that it is a dreadful crime and also a gross violation of human rights. From the cases that come to light reflect the cruelty with which the people 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. To identify and detection would be the most major factors for preventing the recurrence of such conditions. To detect such cases, an efficient and personal or independent machinery prompt action to punish the erring officials can ensure some safety regarding 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. Custodial death is a very common phenomenon in most of the world and it is against human rights. Many incidents occur in relation to custodial death. So, it is needed to follow the rule of law and provide all human beings to their full human rights to live with their life.
Bibliography
1. Biles, D. (1994) ‘Deaths in custody: the Nature and Scope of the Problem’, in A.
Liebling and T. Ward (eds) Deaths in Custody: International PerspectiveLso,ndon:Whiting and Birch.
2. House of Commons (1980) Third Report from the Home Affairs Committee: Deaths
in Police Custody, HC 632, London: HMSO.
3. Norfolk, G. A. (forthcoming) Deaths in Police Custody during 1994 – A
Retrospective Analys,i sJournal of Clinical Forensic Medicine.
4.The Protection of Human Rights Act, 1993. Act 10 of 1994, with Amendment Act, 2006. Springborn RR. Outlook: Death in custody. Department of Justice Criminal Justice Statistics Centre, California. May 2005.
5. Gill J, Koelmeyer TD. Death in Custody and Undiagnosed Central Neurocytoma. Am J Forensic Med Pathol 2009;30: 289–291
6. Torture in India 2010. Asian Centre for Human Rights, April 2010.p-1
7. Wobeser W, Datema J, Bechard B, et al. Causes of death among people in custody in Ontario, 1990–1999. Can Med Assoc J. 2002; 167: 1109 –1113.
8. The Law Commission report(1995) as cited in M.J.Anthony(1997).Landmark Judgements on Illegal Custody and police torture New Delhi, Indian Social Institute,p1
9. The Criminal Procedure Code, 1973. Act 2 of 1974. With Amendment Act 2005.
10. Information retrieved from http://www.airwebworld.com/articles/index.php?article=838
11. Information retrieved from http://bangladesh-web.com/view.php?hidRecord=334185
12. Information retrieved from http://www.thedailystar.net/newDesign/news- details.php?nid=141049
13. Information retrieved from http://bestmoldremoval.ca/605/custodial-death/
14. Information retrieved from http://www.lfhri.org/Pages/Library/publications/Custodial%20deaths.htm
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[1] Information retrieved from http://www.articlesbase.com/criminal-articles/custodial-death-1977427.html
[2] Information retrieved from http://www.lfhri.org/Pages/Library/publications/Custodial%20deaths.htm
[3] V. R. Krishna Iyer (Justice), The dialecties and Dynamies of Human Rights in India (Yesterday, Today and Tomorrow), page 3.
[4] Information retrieved from http://www.lfhri.org/Pages/Library/publications/Custodial%20deaths.htm
[5] Information retrieved from http://www.airwebworld.com/articles/index.php?article=838
[6] Information retrieved from http://bestmoldremoval.ca/605/custodial-death/
[7] Information retrieved from http://bestmoldremoval.ca/605/custodial-death/
[8] Ibid
[9] Information retrieved from http://www.airwebworld.com/articles/index.php?article=838
[10] Information retrieved from http://www.thedailystar.net/newDesign/news-details.php?nid=141049
[11] High Court
[12] Human Rights and Peace for Bangladesh (HRPB)
[13] Information retrieved from http://bangladesh-web.com/view.php?hidRecord=334185
[14] Bangladesh National Human Rights Commission (BNHRC)
[15] Supreme Court Bar Association (SCBA)
[16] Information retrieved from http://www.airwebworld.com/articles/index.php?article=838
[17] Information retrieved from http://www.airwebworld.com/articles/index.php?article=838
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