Atiq Ahmad Killed: Encounters/Custodial Violence and the Role of the Courts

Gangster-turned-politician Atiq Ahmad’s son Asad, wanted in the Umesh Pal murder case, was killed in an encounter in Jhansi by the Uttar Pradesh Police on the 13^th of April, 2023, Special Director General (Law and Order) Uttar Pradesh, Mr. Prashant Kumar said: “Asad and Ghulam were wanted in the Umesh Pal murder case of Prayagraj and were carrying a reward of Rs 5 lakh each. They were killed in an encounter with an UP STF team“.

Let us try to have a view at some of the major cases in this regard that have shaped the law.

Understanding Criminal Jurisprudence

The definition of Custodial Death or custodial violence has not been prescribed by any law. The word ‘custody’ implies guardianship and protective care. It is important to note that even though custody implies confinement of a person, it does not entail to impose evil manifestation during the same. In Merriam Webster’s dictionary the word ‘custody’ has been defined as immediate charge and control (as over a ward or a suspect) exercised by a person or an authority. Several provisions under several enactments such as Sections 330, 331 & 348 of IPC; Sections 25 & 26 of the Indian Evidence Act; Section 76 of CrPC and Section 29 of the Police Act, 1861 have been introduced to protect detenues from the torture inflicted by policemen during custody.

Three important stages of criminal jurisprudence are Arrest, Judicial custody and remand followed by bail. In the famous DK Basu case (1997), some 14 guidelines have been laid down regarding custodial torture and police brutality. Similarly, in Manubhai Ratilal Patel (2013), it was laid down that “…the Magistrate can appreciate the factual scenario and apply his mind whether there is a warrant for police custody or justification for judicial remand or there is no need for any remand at all”. “Bail as the rule and jail as the exception” was famously opined by Krishna Iyer J. in Balchand (1976) case. Reforms have been made recently in Sushila Aggarwal case (2020) which has reaffirmed the judgement in Guraksh Singh Subbia case (1980) and overruled many Supreme Court judgements it deemed to be erring in law.

Some Landmark Judgments:

1. D. K. Basu v. State of West Bengal 1997: Laid down 14 guidelines regarding custodial torture and police brutality as follows:

• “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    The  particulars  of all such police personnel who handle interrogation of the arrestee  must  be recorded in a register.
• 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.
• 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.
• 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.
• 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.
• 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 and the  names  and particulars of the police officials in whose custody the arrestee is.
• 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.
• 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    Director,  Health  Services  should prepare such a penal for all Tehsils and Districts as well.
• Copies of all the documents including the memo of arrest, referred  to above, should be sent to the illaqa Magistrate for his record.
• The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation.
• 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.””

The Hon’ble Court also held that:

“….Transparency of action and accountability perhaps are two possible safeguards which this Court must insist upon. Attention is also required to be paid to properly develop work culture, training and orientation of the police force consistent with basic human values. Training methodology of the police needs restructuring. ”

2. Om Prakash and Ors. v. State of Jharkhand 2012: Police and State Authorities vis-a-vis Extra-Judicial Killings

“….It is not the duty of the police officers to kill the accused merely because he is a dreaded criminal. Undoubtedly, the police have to arrest the accused and put them up for trial. This Court [The Hon’ble Supreme Court] has repeatedly admonished trigger-happy police personnel, who liquidate criminals and project the incident as an encounter. Such killings must be deprecated. They are not recognised as legal by our criminal justice administration system. They amount to State-sponsored terrorism“

3. People’s Union of Civil Liberties (PUCL) v. State of Maharashtra 2014: 16 point guidelines were laid down as the “standard procedure to be followed” for thorough, effective, and independent investigation in the cases of death during police encounters

i) Any intelligence or tip-off regarding criminal activities pertaining to the commission of a grave criminal offence must be recorded either in writing or electronic form

ii) If encounter takes place and firearm is used by the police party and as a result of that, death occurs, an FIR to that effect shall be registered and forwarded to the Court under Section 157 of the CrPC, whilst following the procedure u/s. 158

iii) The investigation, as far as such death is concerned shall be conducted by an independent CID/ a police team of ANOTHER police station

iv) Mandatory magisterial inquiry (under Section 176 of the CrPC) into all cases of encounter deaths MUST be held and a report thereof must be sent to the Judicial Magistrate

v) The information of the incident without any delay must be sent to NHRC or the State Human Rights Commission, as the case may be

vi) Medical Aid to be provided to the criminal/victim

vii) No delay shall be caused in sending FIR, diary entries, panchnamas, sketch, etc., to the concerned Court.

viii) To ensure the trial to be carried out expeditiously, a report shall be sent to the competent court under Section 173 of the CrPC post investigation

ix) In the event of death, the next of kin of the alleged criminal/victim must be informed at the earliest

x) Bi-annual statements of all encounter killings MUST be sent to the NHRC by the DGPs (set date + format)

xi) Disciplinary Action, where death is caused by a firearm amounting to an offence under the Indian Penal Code, 1860 SHALL be promptly initiated and the said officer be placed under suspension

xii) Victim Compensation Scheme (Section 357-A of the CrPC) to be invoked/extended for the benefits dependants of the dead

xiii) Subject to Article 20 of the Constitution, the concerned police officer(s) MUST surrender their weapons for forensic and ballistic analysis

xiv) An intimation about the incident must also be sent to the police officer’s family and legal aid services to be offered

xv) No out-of-turn promotion or instant gallantry rewards shall be bestowed on the concerned officers SOON after the occurred

xvi) Lastly, the family of the victim may make a complaint to the Sessions Judge having territorial jurisdiction over the place of incident if aggrieved by the (lack) of above mentioned procedure followed by the Police

4. Jeyaraj and Fennix case (2020)

Jeyaraj and Fennix were arrested for keeping their shop open for more than 15 minutes during the lockdown. Allegedly, the police brutally beat the father son duo resulting in their deaths.This incident was compared to India’s ‘George Floyd moment’. If found guilty for breaking the lockdown rules, they would have been sentenced for 3 months maximum in jail.

Conclusion

The biggest hurdle in the Indian Criminal Justice System irrespective of the democratic nature of our country where people have the right and liberty to voice their opinions on such gruesome issues that perpetrate Human Rights violations is the fact that there exists a lack of enforcement of existing solutions.

( Also read : https://lawwire.in/custodial-death/ )