Arvind Kumar Mishra-I JUDGMENT
Vimlesh Kumar Shukla, J.
1. Gyanesh Rai s/o Ganga Prasad Rai through the next friend his father Ganga Prasad Rai and Ganga Prasad Rai s/o Raj Narayan Rai have approached this Court, complaining of custodial violence and requesting therein for payment of compensation for physical sufferings and mental agony as well as for initiation of action against erring police personnel.
2. Factual matrix of the case is that petitioner No. 1-Gyanesh Rai is a young man and claims that he had applied for the post of Constable in I.T.B.P. (Central Force) and qualified the physical test held in Dehradun on 23rd February, 2015 and after qualifying the physical test, he was busy in preparation of written examination scheduled to be held in May, 2015 and in between, petitioners submit that, police personnel from police station Doharighat, came to petitioners' house and petitioner No. 1 was informed that he was required for interrogation. Petitioners submit that petitioner No. 1 was taken to the police station on 9th April, 2015 at 5 pm and in the name of carrying out interrogation, petitioner No. 1 was detained at police station up till 16th April, 2015 and during this period, petitioners' grievance is that petitioner No. 1 has been subjected to brutal police torture by using third degree methods like electric shock, severe beating and insertion of aluminium wires through his mouth.
3. Petitioners' submit that immediately thereafter, petitioner No. 2 proceeded to send information to each and every responsible official inclusive of Hon'ble the Chief Justice of this Court, District Magistrate, Mau, State Human Rights Commission, Lucknow and others. Petitioner No. 1 was taken to hospital in the city of Mau in serious condition where he was admitted by the police and thereafter he was shifted to Varanasi and at Varanasi x-ray was conducted at Singh Medical Research Centre wherein aluminium wire has been seen in the throat and abdomen of petitioner No. 1. Petitioner No. 1, thereafter, was taken to Banaras Hindu University but as there was no reference letter he was not admitted there and thereafter he was taken to P.M.C. Hospital, Durga Kund, Varanasi and thereafter, as his condition was very serious, he was referred to K.G.M.C. Lucknow where he was admitted on 18th April, 2015 and thereafter after getting operated upon, petitioner No. 1 has been released. Petitioners have contended that petitioner No. 1 has been subjected to custodial torture and thereafter for the relief mentioned above, present writ petition in question has been filed.
4. As complaint before this Court has been that third Degree method has been applied by police officials namely respondent No. 3 to 9 in complete violation of directives issued by the Apex Court in D.K. Basu vs. State of West Bengal MANU/SC/0157/1997 : 1997 (1) SCC 416, this Court on 6th May, 2015 proceeded to ask Superintendent of Police, Mau to file counter affidavit within four days and thereafter on 12.05.2015, a short counter affidavit was filed and this Court was of the opinion that the short counter affidavit is not at all in consonance with the directives issued by this Court and this Court took serious note of the matter and asked Superintendent of Police, Mau to file his personal affidavit.
5. Pursuant to order dated 12th May, 2015, detailed counter affidavit has been filed appending therein the report of the inquiry officer as well as the report of preliminary inquiry and the action that has been so taken. To the said counter affidavit, rejoinder affidavit has been filed giving therein details of the discharge tickets dated 18th May, 2015.
6. After pleadings mentioned above have been exchanged, present writ petition has been taken up for final hearing and disposal.
7. Shri R.P. Singh, Advocate appearing for the petitioners submitted with vehemence that this is a glaring case wherein petitioner No. 1 has been subjected to custodial violence by adopting third degree methods and the brutality in question is much more compounded from the fact that wire in question has been put in his body and without maintaining any records for six days, he has been confined at the police station and till today, departmental action that has been proposed to be taken, same is an eye-wash and no criminal action has been taken whereas the police officials on the face of record have proceeded to misuse their position, and have committed criminal offence, in view of this, compensation be awarded and directives be issued for lodging of FIR against erring police personnels.
8. Shri Vimlendu Tripathi, learned A.G.A., on the other hand, has contended that there has been no excess on the part of the police personnel and the totality of the circumstance would speak for itself, as here anxiety of police personnel has been to crack the serious offence of loot and murder, that has shocked the entire society.
9. Police atrocities in India is not new and same has always been a subject matter of controversy and debate in consonance with the provisions of Article 21 of the Constitution of India, as any form of torture or criminality in human or degrading treatment is inhibited. Torture is not at all permitted whether it occurs during investigation, interrogation or otherwise. Custodial violence is in effect direct invasion of human rights. Torture in custody flouts the basic rights of citizens recognized by the Indian Constitution and is affront to human dignity. "Custodial Torture" is a calculated assault on human dignity and nothing can be more dehumanizing as the conduct of police in practising torture of any kind on a person in their custody.
10. Mahatma Gandhi in one of his quotes has said as follows:
"I object to violence because when it appears to do good, the good is only temporary, the evil it does is permanent."
11. By resorting to custodial torture, for the time being, police with a view to secure evidence or confession may achieve their goal but in long run, police will have to substantiate and will have to face the scrutiny of Court, as to whether evidence secured or confession made was voluntary or same has been sheer outcome of custodial violence inflicted upon. Evidences and Confessions that come through the route of custodial violence, in long run, do no good and prosecution has to pay heavy price for the same, on such facts being substantiated, otherwise police would be accomplishing behind their closed doors precisely what the demands of our legal order forbid.
12. Time and again custodial torture has been at the radar of the Apex Court and Apex Court, at all point of time, has viewed custodial torture with all seriousness.
13. Apex Court in the case of Raghbir Singh vs. State of Haryana MANU/SC/0547/1980 : 1980 (3) SCC 70 proceeded to mention that State at the highest administrative and political levels would organize special strategies to prevent and punish brutality by police methodology, otherwise, the credibility of the rule of law in our Republic vis-a-vis the people of the country will deteriorate. Relevant extract of said judgement is as follows:
"We are deeply disturbed by the diabolical recurrence of police torture resulting in a terrible scarce in the minds of common citizens that their lives and liberty are under a new peril when the guardians of the law gore human rights to death. The vulnerability of human rights assumes a traumatic, torture some poignancy when violent violation is perpetrated by the police arm of the State whose function is to protect the citizen and not to commit gruesome offences against them as has happened in this case, Police lock-up if reports in newspapers have a streak of credence, are becoming more and more awesome cells. This development is disastrous to our human rights awareness and humanist constitutional order.
The State, at the highest administrative and political levels, we hope, will organise special strategies to prevent and punish brutality by police methodology. Otherwise, the credibility of the rule of law in our Republic vis-a-vis the people of the country will deteriorate.
We conclude with the disconcerting note sounded by Abraham Lincoln:
'If you once forfeit the confidence of your fellow citizens you can never regain their respect and esteem. It is true that you can fool all the people some of the time, and some of the people all the time, but you cannot fool all the people all the time.'
These observations have become necessary to impress upon' the State police echelons the urgency of stamping out the vice of 'third degree' from the investigative armoury of the police."
14. Apex Court in the case of State of Uttar Pradesh vs. Ram Sagar Yadav and others MANU/SC/0118/1985 : 1985 (1) SCC 552 has proceeded to took a note of the fact that at the point of time when a person is in custody and he is subjected to any atrocity, then, at the said point of time, police officials alone and none else, can give evidence as regards the circumstances in which a person in their custody comes to receive injuries while in their custody. Relevant extract of said judgement is as follows:
"Police Officers alone, and none else, can give evidence as regards the circumstances in which a person in their custody comes to receive injuries while in their custody. Bound by ties of a kind of brotherhood, they often prefer to remain silent in such situations and when they choose to speak, they put their own gloss upon facts and pervert the truth. The result is that persons, on whom atrocities are perpetrated by the police in the sanctum sanctorum of the police station, are left without any evidence to prove who the offenders are."
15. Apex Court, in the case of Nilabati Behera @ Lalit Behera vs. State of Orissa and others, MANU/SC/0307/1993 : 1993 (2) SCC 746 proceeded to take view that even convicts, prisoners and undertrials have right under Article 21 and once an incumbent is taken into custody and there are injuries on his body, then State will have to explain, as to how he sustained the injuries, and compensation can be awarded under public law remedy.
16. Apex Court in the case of D.K. Basu vs. State of West Bengal MANU/SC/0157/1997 : 1997 (1) SCC 416, has dealt with the issue of custodial violence, and has clearly ruled, interrogation through essential must be on scientific principles, third degree methods are impermissible, balanced approach should be there so that criminals don't go scot free. Various guidelines have been issued and same are holding the field, even as on date, in addition to constitutional and statutory safeguards. Relevant extract of said judgment is as follows:
"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 citizens. Custodial violence, including torture and death in the lock ups, strikes a blow at the Rule of Law, which demands that the powers of the executive should not only be derived from law but also that the same should be limited by law. Custodial violence is a matter of concern. It is aggravated by the fact that it is committed by persons who are supposed to be the protectors of the citizens. It is committed under the shield of uniform and authority in the four walls of a police station or lock-up, the victim being totally helpless. The protection of an individual from torture and abuse by the police and other law enforcing officers is a matter of deep concern in a free society. These petitions raise important issues concerning police powers, including whether monetary compensation should be awarded for established infringement of the Fundamental Rights guaranteed by Articles 21 and 22 of the Constitution of India. The issues are fundamental.
"Torture" has not been defined in Constitution or in other penal laws. 'Torture' of a human being by another human being is essentially an instrument to impose the will of the 'strong' over the 'weak' by suffering. The word torture today has become synonymous wit the darker side of human civilisation.
"Torture is a wound in the soul so painful that sometimes you can almost touch it, but it is also so intangible that there is not way to heal it. Torture is anguish squeezing in your chest, cold as ice and heavy as a stone paralyzing as sleep and dark as the abyss. Torture is despair and fear and rage and hate. It is a desire to kill and destroy including yourself."
-Adriana P. Bartow
No violation of any one of the human rights has been the subject of so many Conventions and Declarations as 'torture'-all aiming at total banning of it in all forms, but inspite of the commitments made to eliminate torture, the fact remains that torture is more widespread not that ever before, "Custodial torture" is a naked violation of human dignity and degradation with destroys, to a very large extent, the individual personality. IT is a calculated assault on human dignity and whenever human dignity is wounded, civilisation takes a step backward-flag of humanity must on each such occasion fly half-mast.
In all custodial crimes that is of real concern is not only infliction of body pain but the mental agony which a person 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 cruel, 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.
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 of an offence shall not be compelled to be a witness against himself. These are some of the constitutional safeguard provided to a person with a view to protect his personal liberty against and unjustified assault by the State, In tune with the constitutional guarantee a number statutory provisions also seek to project personal liberty, dignity and basic human rights of the citizens. Chapter V of Criminal Procedure Code, 1973 deals with the powers of arrest of a person and the safeguard which are required to be followed by the police to protect the interest of the arrested person. Section 41, Cr.P.C. confers powers on any 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 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 event of his arrest for a non-bailable offence. 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 other provisions also like Section 53, 54 and 167 which are aimed at affording procedural safeguards to a person arrested by the police. Whenever a person dies in custody of the police, Section 176 requires the Magistrate to hold and enquiry into the cause of death.
However, inspite of the constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, growing incidence of torture and deaths in police custody has been a disturbing factor. Experience shows that worst violations of human rights take place during the course of investigation, when the police with a view to secure evidence or confession often resorts 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 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.
Custodial death is perhaps one of the worst crimes in a civilised society governed by the Rule of Law. The rights inherent in Articles 21 and 22(1) of the Constitution required to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture of cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise. If the functionaries of the Government become law breakers, it is bound to breed contempt for law and would encourage lawlessness and every man would have the tendency to become law unto himself thereby leading to anarchanism. No civilised nation can permit that to happen. Does a citizen shed off his fundamental right to life, the moment a policeman arrests him? Can the right to life of a citizen be put in abeyance on his arrest? These questions touch the spinal court of human rights jurisprudence. The answer, indeed, has to be an emphatic 'No'. The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicted undertrials, detenues and other prisoners in custody, except according to the procedure established by law by placing such reasonable restrictions as are permitted 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 torture or death is generally not given any attention by the police officers because of ties of brotherhood. No first information report at the instance of the victim or his kith and kin is generally entertained and even the higher police officers turn a blind eye to such complaints. Even where a formal prosecution is launched by the victim or his kith and kin, no direct evidence is available to substantiate the charge of torture or causing hurt resulting into death as the police lock-up where generally torture or injury is caused is away from the public gaze and the witnesses are either police men or co-prisoners who are highly reluctant to appear as prosecution witness due to fear of letaliation by the superior officers of the police. It is often seen that when a complaint is made against torture, death or injury, in police custody, it is difficult to secure evidence against the policemen responsible for resorting to third degree methods since they are incharge of police station records which they do not find difficult to manipulate. Consequently, prosecution against the delinquent officers generally results in acquittal. State of Madhya Pradesh Vs. Shyamsunder Trivedi & Ors. MANU/SC/0722/1995 : [1995 (3) Scale 343] is an apt case illustrative of the observations made by us above. In that case, Nathu Bnjara was tortured at police station, Rampura during the interrogation. As a result of extensive injuries caused to him he died in police custody at the police station. The defence set up by the respondent police officials at the trial was that Nathu Banjara had been released from police custody at about 10.30 p.m. after interrogation 13.10.1986 itself vide entry EX. P/22A in the Roznamcha and that at about 7.00 a.m. on 14.10.1981, a death report Ex. P/9 was recorded at the police station, Rampura, at the instance of Ramesh respondent No. 6, to the effect that he had found "one unknown person" near a tree by the side of the tank riggling with pain in his chest and that as a soon as respondent No. 6 reached near him, the said person died. The further case set up by SI Trivedi, respondent No. 1, incharge of the police station was that after making a Roznamcha entry at 7.00 a.m. about his departure from the police station he (respondent No. 1- Shyamsunder Trivedi) and Constable Rajaram respondent proceeded to the spot where the dead body was stated to be lying for conducting investigation 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.
Police is, no doubt, under a legal duty and has legitimate right to arrest a criminal and to interrogate him during the investigation of a an offence but it must be remembered that the law does not permit use of third degree methods or torture of accused in custody during interrogation and investigation 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 interrogation may deter the police from using third degree methods during interrogation.
There is one other aspect also which needs out consideration, We are conscious of the fact that the police in India have to perform a difficult and delicate task, particularly in view of the deteriorating law and order situation, communal riots, political turmoil, student unrest, terrorist activities, and among others the increasing number of underworld and armed gangs and criminals, Many hard core criminals like extremist, the terrorists, drug peddlers, smugglers who have organised gangs, have taken strong roots in the society. It is being said in certain quarters that with more and more liberalisation and enforcement of fundamental rights, it would lead to difficulties in the detection of crimes committed by such categories of hardened criminals by soft peddling interrogation. 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.
There can be no gain saying that freedom of an individual must yield to the security of the State. The right of preventive detention of individuals in the interest of security of the State in various situations prescribed under different statures has been upheld by the Courts. The right to interrogate the detenues, culprits or arrestees in the interest of the nation, must take precedence over an individual's right to personal liberty. The latin maxim salus populi est supreme lex (the safety of the people is the supreme law) and salus republicae est suprema lex (safety of the state is the supreme law) co-exist an dare not only important and relevant but lie at the heart of the doctrine that the welfare of an individual must yield to that of the community. The action of the State, however must be "right, just and fair". Using any form of torture for extracting any kind of information would neither be 'right nor just nor fair' and, therefore, would be impermissible, being offensive to Article 21. Such a crime-suspect must be interrogated - indeed subjected to sustained and scientific interrogation determined in accordance with the provisions of law. He cannot, however, be tortured or subjected to third degree methods or eleminated with a view to elicit information, extract confession or drive knowledge about his accomplices, weapons etc. His Constitutional right cannot be abridged except in the manner permitted by law, though in the very nature of things there would be qualitative difference in the methods of interrogation of such a person as compared to an ordinary criminal. Challenge of terrorism must be met wit innovative ideas and approach. State terrorism is not answer to combat terrorism. State terrorism is no answer to combat terrorism. State terrorism would only provide legitimacy to 'terrorism'. That would be bad for the State, the community and above all for the Rule of Law. The State must, therefore, ensure that various agencies deployed by it for combating terrorism act within the bounds of law and not become law unto themselves. that the terrorist has violated human rights of innocent citizens may render him liable for punishment but it 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.
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, visible and clear identification and name togs with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register.
(2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest a such memo shall be attested by atleast one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be counter signed by the arrestee and shall contain the time and date of arrest.
(3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee.
(4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or town through the legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest.
(5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon he is put under arrest or is detained.
(6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of he next friend of the person who has been informed of the arrest an the names 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 both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee.
(8) The arrestee should be subjected to medical examination by 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 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."
17. Apex Court in the case of Shakila Abdul Gafar Khan vs. Vasant Raghunath Dhoble and another MANU/SC/0677/2003 : 2003 (7) SCC 749 has proceeded to make a mention that who are at the helm of affairs who proclaim from rooftops to be the defenders of democracy and protectors of people's rights and do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, reigning ignorance of what happens and pretending to be peace-loving puritans and saviours of citizens' rights. Relevant extract of said judgement is as follows:
"If it is assuming alarming proportions, now a days, all around it is merely on account of the devilish devices adopted by those at the helm of affairs who proclaim from roof tops to be the defenders of democracy and protectors of peoples' rights and yet do not hesitate to condescend behind the screen to let loose their men in uniform to settle personal scores, feigning ignorance of what happens and pretending to be peace loving puritans and saviours of citizens' rights.
Article 21 which is one of the luminary provisions in the Constitution of India, 1950 (in short the 'Constitution') and is a part of the scheme for fundamental rights occupies a place of pride in the Constitution. The Article mandates that no person shall be deprived of his life and personal liberty except according to the procedure established by law. This sacred and cherished right i.e. personal liberty has an important role to play in the life of every citizen. Life or personal liberty includes a right to live with human dignity. There is an inbuilt guarantee against torture or assault by the State or its functionaries. Chapter V of the Code of Criminal Procedure, 1973 (for short the 'Code') deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interest of the arrested person. Articles 20(3) and 22 of the Constitution further manifest the constitutional protection extended to every citizen and the guarantees held out for making life meaningful and not a mere animal existence. It is therefore difficult to comprehend how torture and custodial violence can be permitted to defy the rights flowing from the Constitution. The dehumanizing torture, assault and death in custody which have assumed alarming proportions raise serious questions about the credibility of rule of law and administration of criminal justice system. The community rightly gets disturbed. The cry for justice becomes louder and warrants immediate remedial measures. This Court has in a large number of cases expressed concern at the atrocities perpetuated by the protectors of law. Justice Brandies's observation which have become classic are in following immortal words:
"Government as the omnipotent and omnipresent teacher teaches the whole people by its example, if the Government becomes a law breaker, it breeds contempt for law, it invites every man to become a law into himself". (in (1928) 277 U.S. 438, quoted in (1961) 367 U.S. 643 at 659)."
The diabolic recurrence of police torture resulting in a terrible scare in the minds of common citizens that their lives and liberty are under a new and unwarranted peril because guardians of law destroy the human rights by custodial violence and torture and invariably resulting in death. The vulnerability of human rights assumes a traumatic torture when functionaries of the State whose paramount duty is to protect the citizens and not to commit gruesome offences against them, in reality perpetrate them. The concern which was shown in Raghubir Singh's case (supra) more than two decades back seems to have fallen to leaf ears and the situation does not seem to be showing any noticeable change. The anguish expressed in Gauri Shanker Sharma v. State of U.P. (MANU/SC/0132/1990 : AIR 1990 SC 709), Bhagwan Singh and Anr. v. State of Punjab (MANU/SC/0322/1992 : 1992 (3) SCC 249), Smt. Nilabati Behera @Lalita Behera v. State of Orissa and Ors. (MANU/SC/0307/1993 : AIR 1993 SC 1960), Pratul Kumar Sinha v. State of Bihar and Anr. (1994 Supp. (3) SCC 100), Kewal Pati (Smt.) v. State of U.P. and Ors. (MANU/SC/0693/1995 : 1995 (3) SCC 600), Inder Singh v. State of Punjab and Ors. (MANU/SC/0380/1995 : 1995(3) SCC 702), State of M.P. v. Shyamsunder Trivedi and Ors. (MANU/SC/0722/1995 : 1995 (4) SCC 262) and by now celebrated decision in Shri D.K. Basu v. State of West Bengal MANU/SC/0157/1997 : (JT 1997 (1) SC 1) seems to have caused not even any softening attitude to the inhuman approach in dealing with persons in custody.
Rarely in cases of police torture or custodial death, direct ocular evidence of the complicity of the police personnel alone who can only explain the circumstances in which a person in their custody had died. Bound as they are by the ties of brotherhood, it is not unknown that the police personnel prefer to remain silent and more often than not even pervert the truth to save their colleagues - and the present case is an apt illustration - as to how one after the other police witnesses feigned ignorance about the whole matter."
18. Apex Court in the case of Sube Singh vs. State of Haryana and others MANU/SC/0821/2006 : 2006 (3) SCC 178 has taken note of custodial violence to be torture and third degree methods used by police during interrogation and has discussed in detail the reasons behind such practice and has also given preventive measures as to how such violence can be tackled. Relevant extract of said judgement is as follows:
"Unfortunately, police in the country have given room for an impression in the minds of public, that whenever there is a crime, investigation usually means rounding up all persons concerned (say all servants in the event of a theft in the employer's house, or all acquaintances of the deceased, in the event of a murder) and subjecting them to third-degree interrogation in the hope that someone will spill the beans. This impression may not be correct, but instances are not wanting where police have resorted to such a practice. Lack of training in scientific investigative methods, lack of modern equipment, lack of adequate personnel, and lack of a mindset respecting human rights, are generally the reasons for such illegal action. One other main reason is that the public (and men in power) expect results from police in too short a span of time, forgetting that methodical and scientific investigation is a time consuming and lengthy process. Police are branded as inefficient even when there is a short delay in catching the culprits in serious crimes. The expectation of quick results in high-profile or heinous crimes builds enormous pressure on the police to somehow 'catch' the 'offender'. The need to have quick results tempts them to resort to third degree methods. They also tend to arrest "someone" in a hurry on the basis of incomplete investigation, just to ease the pressure. Time has come for an attitudinal change not only in the minds of the police, but also on the part of the public. Difficulties in criminal investigation and the time required for such investigation should be recognized, and police should be allowed to function methodically without interferences or unnecessary pressures. If police are to perform better, the public should support them, government should strengthen and equip them, and men in power should not interfere or belittle them. The three wings of the Government should encourage, insist and ensure thorough scientific investigation under proper legal procedures, followed by prompt and efficient prosecution. Be that as it may.
Custodial violence requires to be tackled from two ends, that is, by taking measures that are remedial and preventive. Award of compensation is one of the remedial measures after the event. Effort should be made to remove the very causes, which lead to custodial violence, so as to prevent such occurrences. Following steps, if taken, may prove to be effective preventive measures:
a) Police training should be re-oriented, to bring in a change in the mindset and attitude of the Police personnel in regard to investigations, so that they will recognize and respect human rights, and adopt thorough and scientific investigation methods.
b) The functioning of lower level Police Officers should be continuously monitored and supervised by their superiors to prevent custodial violence and adherence to lawful standard methods of investigation.
c) Compliance with the eleven requirements enumerated in D.K. Basu (supra) should be ensured in all cases of arrest and detention.
d) Simple and fool-proof procedures should be introduced for prompt registration of first information reports relating to all crimes.
e) Computerization, video-recording, and modern methods of records maintenance should be introduced to avoid manipulations, insertions, substitutions and ante-dating in regard to FIRs, Mahazars, inquest proceedings, Port-mortem Reports and Statements of witnesses etc. and to bring in transparency in action.
f) An independent investigating agency (preferably the respective Human Rights Commissions or CBI) may be entrusted with adequate power, to investigate complaints of custodial violence against Police personnel and take stern and speedy action followed by prosecution, wherever necessary.
The endeavour should be to achieve a balanced level of functioning, where police respect human rights, adhere to law, and take confidence building measures (CBMs), and at the same time, firmly deal with organized crime, terrorism, white-collared crime, deteriorating law and order situation etc."
19. Apex Court in the case of Prithipal Singh and others vs. State of Punjab and another MANU/SC/1292/2011 : 2012 (1) SCC 10 has considered that the State has to protect the victim of torture and State cannot be permitted to negate such a right. Relevant extract of said judgement is as follows:
"Police atrocities in India had always been a subject matter of controversy and debate. In view of the provisions of Article 21 of the Constitution, any form of torture or cruel, inhuman or degrading treatment is inhibited. Torture is not permissible whether it occurs during investigation, interrogation or otherwise. The wrong-doer is accountable and the State is responsible if a person in custody of the police is deprived of his life except in accordance with the procedure established by law. However, when the matter comes to the court, it has to balance the protection of fundamental rights of an individual and duties of the police. It cannot be gainsaid that freedom of an individual must yield to the security of the State. Latin maxim salus populi est suprema lex - the safety of the people is supreme law; and salus reipublicae suprema lex - safety of the State is supreme law, 14 co-exist. However, the doctrine of the welfare of an individual must yield to that of the community.
The right to life has rightly been characterised as "'supreme' and 'basic'; it includes both so-called negative and positive obligations for the State". The negative obligation means the overall prohibition on arbitrary deprivation of life. In this context, positive obligation requires that State has an overriding obligation to protect the right to life of every person within its territorial jurisdiction. The obligation requires the State to take administrative and all other measures in order to protect life and investigate all suspicious deaths.
The State must protect victims of torture, ill-treatment as well as the human rights defender fighting for the interest of the victims, giving the issue serious consideration for the reason that victims of torture suffer enormous consequences psychologically. The problems of acute stress as well as a post-traumatic stress disorder and many other psychological consequences must be understood in correct perspective. Therefore, the State must ensure prohibition of torture, cruel, inhuman and degrading treatment to any person, particularly at the hands of any State agency/police force.
In addition to the protection provided under the Constitution, the Protection of Human Rights Act, 1993, also provide for protection of all rights to every individual. It inhibits illegal detention. Torture and custodial death have always been condemned by the courts in this country. In its 113th report, the Law Commission of India recommended the amendment to the Indian Evidence Act, 1872 (hereinafter called "Evidence Act"), to provide that in case of custodial injuries, if there is evidence, the court may presume that injury was caused by the police having the custody of that person during that period. Onus to prove contrary is on the police authorities. Law requires for adoption of a realistic approach rather than narrow technical approach in cases of custodial crimes."
20. Apex Court, in the case of Mehmood Nayyar Azam vs. State of Chattisgarh and others MANU/SC/0615/2012 : 2012 (3) SCC Cr. 733, has extensively dealt with the issue of custodial humiliation and mental torture and the way and manner in which compensation can be awarded under public law remedy.
21. Apex Court in the case of People's Union for Civil Liberties and another vs. State of Maharashtra and others MANU/SC/0882/2014 : 2014 (10) SCC 635 has clearly mentioned that Article 21 of Constitution of India guarantees "right to live with human dignity" and any violation of human rights is viewed seriously. Relevant extract of said judgement is as follows:
"Article 21 of the Constitution of India guarantees "right to live with human dignity". Any violation of human rights is viewed seriously by this Court as right to life is the most precious right guaranteed by Article 21 of the Constitution. The guarantee by Article 21 is available to every person and even the State has no authority to violate that right.
In some of the countries when a police firearms officer is involved in a shooting, there are strict guidelines and procedures in place to ensure that what has happened is thoroughly investigated. In India, unfortunately, such structured guidelines and procedures are not in place where police is involved in shooting and death of the subject occurs in such shooting. We are of the opinion that it is the constitutional duty of this Court to put in place certain guidelines adherence to which would help in bringing to justice the perpetrators of the crime who take law in their own hands.
Article 21 of the Constitution provides "no person shall be deprived of his life or personal liberty except according to procedure established by law". This Court has stated time and again that Article 21 confers sacred and cherished right under the Constitution which cannot be violated, except according to procedure established by law. Article 21 guarantees personal liberty to every single person in the country which includes the right to live with human dignity.
In line with the guarantee provided by Article 21 and other provisions in the Constitution of India, a number of statutory provisions also seek to protect personal liberty, dignity and basic human rights. In spite of Constitutional and statutory provisions aimed at safeguarding the personal liberty and life of a citizen, the cases of death in police encounters continue to occur. This Court has been confronted with encounter cases from time to time. In Chaitanya Kalbagh, this Court was concerned with a writ petition filed under Article 32 of the Constitution wherein the impartial investigation was sought for the alleged killing of 299 persons in the police encounters. The Court observed that in the facts and circumstances presented before it, there was an imperative need of ensuring that the guardians of law and order do in fact observe the code of discipline expected of them and that they function strictly as the protectors of innocent citizens.
We are not oblivious of the fact that police in India has to perform a difficult and delicate task, particularly, when many hardcore criminals, like, extremists, terrorists, drug peddlers, smugglers who have organized gangs, have taken strong roots in the society but then such criminals must be dealt with by the police in an efficient and effective manner so as to bring them to justice by following rule of law. We are of the view that it would be useful and effective to structure appropriate guidelines to restore faith of the people in police force. In a society governed by rule of law, it is imperative that extra-judicial killings are properly and independently investigated so that justice may be done."
22. Consistent message has been sent to the members of police force that an incumbent in custody cannot be put to tremendous psychological pressure by cruel, inhuman and degrading treatment, and police officers should have greatest regard for personal liberty of citizens as they are the custodians of law and order and hence, they should not flout the law by stooping to bizarre act of lawlessness.
23. On all these parameters, the case in hand is being looked into and what we find, in the present case, is that it reflects a sorry state of affairs as the factual situation that is so emerging that in reference of investigation of Case Crime No. 185 of 2015 under Sections 394 and 302 IPC, the petitioner has been up picked for investigation and thereafter without maintaining any record whatsoever, he has been detained at the police station w.e.f. 9th April, 2015 upto 15th April, 2015 and during this period, the condition of petitioner No. 1 has deteriorated and he has been taken to various hospitals and in the x-ray report that has been so brought on record, wire has been found in the body of petitioner No. 1 and in Magisterial Enquiry that has been so conducted on 18th June, 2015, this much fact has been recorded that without any record being maintained, petitioner No. 1 has been illegally detained at the police station and in the Magisterial Enquiry positive opinion has not been given and on the surmises and conjectures, it has been mentioned that it cannot be said with surety as to whether he has inserted the wire himself or police personnel has done the same. There is no occasion or convincing reason to believe this theory that petitioner No. 1 would insert wire on his own. Once petitioner No. 1 has been in police custody, then it was the obligation of police officials to explain, as to from where the wire has come in the body of petitioner No. 1. Finding recorded that he has been illegally detained at the police station and in his body wire has been found is fully supported from the documentary evidence maintained at police station as well as from the medical evidence available on record.
24. Once such is the factual situation that is so emerging in the present case that petitioner No. 1 has been subjected to torture by police taking recourse to violence, then, in the facts of the case, the request that has been made by the petitioner for awarding him compensation being victim of custodial violence has to be accepted, inasmuch as, petitioner No. 1 has been forced to suffer lot of physical and mental agony as is reflected from the photograph at page 46 of paper book and for number of days he has been forced to spent in hospital. Awarding of compensation is demand of the situation, looking to the agony that a young man has to undergo, and the fact that his career to join I.T.B.P. has been withered away. Treatment meted to petitioner is purely inhuman, that has inflicted immense mental pain leading to sense of insecurity and helplessness in him. In this background, we proceed to award compensation of Rs. 5 lacs to petitioner No. 1 to be paid by the State Government within two months from the date of receipt of certified copy of this order. In case petitioners have a strong feeling that they are entitled for much more quantum of damages, they can always invoke common law remedy for additional compensation.
25. Coupled with this, in the present case, once such is the factual situation that is so emerging that prima-facie there has been custodial violence, then FIR ought to have been lodged and investigation ought to have been carried out. Here, we find that despite application under Section 156(3) Cr.P.C. being moved and Superintendent of Police, Mau being aware of the entire situation, till date, FIR has not been lodged and no action has been taken by undertaking free, fair and impartial investigation, in view of this, we proceed to pass an order asking Superintendent of Police, Mau to forthwith ensure that FIR is lodged against erring police incumbents as per the law laid down by Apex Court, in the case of Lalita Kumari vs. Government of U.P. MANU/SC/1166/2013 : 2014 (2) SCC 1 and the investigation in question is carried out under his supervision by an officer not below the rank of Circle Officer, who will proceed to carry out investigation in free, fair and transparent manner.
26. With these observations/directions, writ petition is allowed.
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