Custodial Interrogation
Custodial interrogation should be avoided where the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond. But with non-cooperative person, it is a necessity. Custodial interrogation is a psychological test of patience. Most often repeated questioning by different officers in an isolated room for long hours is by itself, puts pressure on the person in custody to end this ordeal as early as possible. Of course custodial interrogation does not permit any kind of violence. This has been dealt with later.
If we examine the background in enacting the new Section 167(2) and the proviso (a) as well as Section 309 of the Code it becomes clear that the legislature recognised that such custody namely police, judicial or any other custody like detaining the arrested person in Nari Sadans etc. Should be in the whole for fifteen days and the further custody under the proviso to Section 167 or under Section 309 should only be judicial…. If an accused is detained in police custody the maximum period during which he can be kept in such custody is only fifteen days either pursuant to a single order or more than one when such orders are for lesser number of days but on the whole such custody cannot be beyond fifteen days and the further remand to facilitate the investigation can only be by detention of the accused in judicial custody. … The custody after the expiry of the first fifteen days can only be judicial custody during the rest of the periods of ninety days or sixty days and that police custody if found necessary can be ordered only during the first period of fifteen days…… The detention in police custody is generally disfavoured by law. The provisions of law lay down that such detention can be allowed only in special circumstances and that can only by a remand granted by a magistrate for reasons judicially scrutinised and for such limited purposes as the necessities of the case may require. The scheme of Section 167 is obvious and is intended to protect the accused from the methods which may be adopted by some overzealous and unscrupulous police officers.
CBI vs. Anupam J. Kulkarni, AIR 1992 SC 1768: 1992 (3) SCC 141: 1992 Cr. L. J. 2768.
A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided.
Siddharam Satlingappa Mhetre vs State of Maharashtra, AIR 2011 SC 312.
Presence of lawyer during interrogation
Art. 22(1) of the Constitution of India, reads as under:
"No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult , and to be defended by, a legal practitioner of his choice."
The right to consult an advocate of his choice shall not be denied to any person who is arrested. This does not mean that persons who are not under arrest or custody can be denied that right. The spirit and sense of Art. 22 (1 ) is that it is fundamental to the rule of law that the services of a lawyer shall be available for consultation to any accused person under circumstances of 'near-custodial interrogation. Moreover, the observance of the right against self-incrimination is best promoted by conceding to the accused the right to consult a legal practitioner of his choice.
Not that a lawyer's presence is a panacea for all problems of involuntary self-crimination, for he cannot supply answers or whisper hints or otherwise interfere with the course of questioning except to intercept where intimidatory tactics are tried, caution his client where incrimination is attempted and insist on questions and answers being noted where objections are not otherwise fully appreciated. He cannot argue the police but may help his client and complain on his behalf, although his very presence will ordinarily remove the implicit menace of a police station. The presence of a lawyer is asking for the moon in many cases until a public defender system becomes ubiquitous. The police need not wait more than for a reasonable while for an advocate's arrival. But they must invariably warn and record the fact about the right to silence against self-incrimination; and where the accused is literate take his written acknowledgement. 'Third degree' or physical torture is an easy temptation where the pressure to detect is heavy, the cerebration involved is hard and the resort to torture may yield high dividends.
"We do not lay down that the Police must secure the services of a lawyer. That will lead to 'police-station-lawyer' system, an abuse which breeds other vices. But all that we mean is that if an accused person expresses the wish to have his lawyer by his side when his examination goes on, this facility shall not be denied, without being exposed to the serious reproof that involuntary self-crimination secured in secrecy and by coercing the will, was the project. "
Nandini Satpathy vs Dani, AIR 1978 SC 1025, 1978 SCR (3) 608.
Custodial violence
Custodial violence has always been a matter of great concern for all civilized societies. Custodial violence could take the form of third degree methods to extract information – the method used need not result in any physical violence but could be in the form of psychological violence. Custodial violence could also include a violation of bodily integrity through sexual violence – it could be to satisfy the lust of a person in authority or for some other reason. The 'Mathura Rape Case' is one such incident that most are familiar with. Custodial violence could, sometimes, lead to the death of its victim who is in a terribly disadvantaged and vulnerable condition. All these forms of custodial violence make it abhorrent and invite disparagement from all sections of civilized society.
Re-Inhuman Conditions In 1382 Prisons vs . State Of Assam, decided by SC on 15 September, 2017.
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.
"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.
D.K. Basu vs. State of West Bengal, (1997) 1 SCC 416.
Third degree methods
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.
Gyanesh Rai vs. State of U.P., Allahabad High Court.
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, should 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.
Raghbir Singh vs. State of Haryana 1980 (3) SCC 70.
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.
Gyanesh Rai vs. State of U.P., Allahabad High Court.
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 sanctorium of the police station, are left without any evidence to prove who the offenders are. The law as to the burden of proof in such cases may be re-examined by the legislature so that hand-maids of law and order do not use their authority and opportunities for oppressing the innocent citizens who look to them for protection.
State of Uttar Pradesh vs. Ram Sagar Yadav , 1985 (1) SCC 55: AIR 1985 SC 416, 1986 CriLJ 836, 1985 (1) Crimes 344 SC, 1985 (1) SCALE 108, (1985) 1 SCC 552.
Implied Custody
When a person not in custody approaches a police officer investigating an offence and offers to give information leading to the discovery of a fact, having a bearing on the charge which may be made against him he may appropriately be deemed to have surrendered himself to the police. Section 46 of the Code of Criminal Procedure does not contemplate any formality before a person can be said to be taken in custody : submission to the custody by word or action by a person in sufficient. A person directly giving to a police officer by word of mouth information which may be used as evidence against him, may be deemed to have submitted himself to the "custody" of the police officer within the meaning of s. 27 of the Indian Evidence Act.
State of U.P. v. Deoman Upadhyaya, AIR 1960 SC 1125, 1960 CriLJ 1504, 1961 (1) SCR 14.
The effect of above judgement must be restricted to the admissibility of statements recorded by police u/s 27 of the Evidence Act and should not be understood as of universal application.
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