Law and Custodial Death.

The death of a person in custody violates the basic rights of the citizens recognized by the Constitution of India. Typically, it is difficult to secure evidence against the police responsible for adopting third-degree methods since they are in charge of the police station records. The guidelines given by the Supreme Court under various cases provide protection such as the right to be informed about the grounds of arrest, the right to bail, the right to appoint a person to be informed of the arrest and place of detention, etc. The Constitution of India also provides various rights to a person in custody.


Custodial death is one of the most heinous crimes in a civilized society regulated by the Rule of Law. Sometimes, custodial death happens due to not providing proper care at a proper time, due to complications of physical torture by police and some deaths remain suspicious. Custodial death in terms of Human Rights is a wretched offense. Custodial violence is the most prominent factor responsible for deaths in prisons and lock-ups. The incident of custodial death in the world’s greatest democracy has risen. Our Constitution has set out fundamental rights to guarantee certain basic rights and liberties to the citizens. The toll of deaths in police custody is on the rise in the past decade. Many deaths have happened while in custody but no attention has been paid so far. The National Human Rights Commission has proposed that in custodial death cases the police officer in charge must be held liable and not the state. In India, police lock-ups are managed by the police, and such incidents are possible only by their actions. Thus, custodial death is an important issue for a country like India.

Custodial Death

The death of a person while in the custody of the police or judiciary will amount to Custodial Death. Custodial Death can happen due to Negligence by the concerned authorities in any form of torture or cruel, inhuman, or degrading treatment by the police officers whether it occurs due to investigation or interrogation, unlawful detention of a person more than a stipulated time, and so on. Prisoners are entitled to fundamental rights under the Indian Constitution while they are in custody. They are not deprived of basic human rights except those which are curbed by the court.

Custodial death generally refers to death either in police custody or judicial custody.

Police Custody: A police officer arrests the accused by following the receipt of information or compliant or report by police about crime and prevent him from committing further offenses and brings him to the police station is known as the police custody. In this, the accused is kept in the lock-up.

Judicial CustodyWhen an accused is kept in jail by the order of the concerned magistrate, then it is said to be under Judicial Custody. When an accused is presented before a magistrate, he can either be sent to jail or kept under police custody by the magistrate.

Offenses Committed by Police Misusing the Custody:

Police are misusing the Custody and causing torture to the victims in the custody. This generally means the action or practice of inflicting severe pain on someone as a punishment to force someone to make him give some information. Due to this, the victims get immense pain and suffering. It deprives victims of life’s enjoyment and also compels them to commit suicide.

Rape: Rape is one of the prevalent forms of custodial torture. The Mathura rape case where Mathura, a kidnapped minor was raped by three policemen in the lockup is an example of such custodial torture.

Harassment: In Nilabeti Behara v. the State of Orissa, the victim had died due to the harassment and beatings by the police. Such actions are prevalent among the police and it leads to many sufferings to the victims.

Illegal Detention: In Rudal Shah v. the State of Bihar, the accused was kept in jail for 14 years, after his acquittal by the Sessions Court. Such action leads to immense pain and suffering.

Statutory Provisions:

The Constitution of India, 1950

Article 21:

Article 21 provides the citizens of India with the right to life and personal liberty. In the Case of D.K. Basu v. State of West Bengal, The Hon’ble Supreme Court held that the rights guaranteed under Article 21 of the Constitution could not be denied to convicts, under-trials, and other prisoners in custody, except according to the procedure established by law. The Supreme Court in this case laid down certain guidelines to be followed by the Centre and State investigating and security agencies in all cases of arrest and detention. Hence, these guidelines are popularly known as “D.K. Basu guidelines” and are as follows;

  1. The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear clear identification and name tags with their designation.
  2. The police officer carrying out the arrest must make a memo of arrest at the time of the arrest.
  3. A friend or relative or any other person known to the arrestee shall be informed about the arrest as early as possible.
  4. If the next friend or relative of the arrestee lives outside the district or town, they must be informed through the ‘legal aid organization’ in the district and the police station of the area concerned telegraphically after the arrest within a period of 8 to 12 hours.
  5. The arrested person must be instructed about the right to have informed someone about his arrest.
  6. An entry should be made in the diary regarding the arrested person.
  7. The arrestee should be examined at the time of the arrest.
  8. The arrested person should be subjected to medical examination within 48 hours during his detention.
  9. Copies of all documents including the memo of arrest should be sent to the concerned magistrate for his record.
  10. The arrestee should be allowed to meet his lawyer during interrogation.
  11. A police control room should be set up in all district and state headquarters and information about the arrestee has to be communicated within 12 hours of effecting the arrest to the police control room.

There are certain rights for prisoners conferred in Article 21. They are:

  • Right to bail.
  • Right to free legal aid.
  • Right against Solitary Confinement.
  • Right against Handcuffing.
  • Right against inhuman treatment.
  • Right against Illegal Detention.
  • Right to a speedy and fair trial.
  • Right to meet friends and consult a lawyer. 

Article 20:

Article 20(1) provides that a person should be prosecuted as per those laws that were in force when he committed the offense.

Article 20(2) provides that a person shall not be prosecuted and punished for the same offense more than once.

Article 20(3) provides that a person accused of an offense shall not be compelled to be a witness against himself.

Article 22:

Article 22 guarantees protection against arrest and detention in certain cases and provides that no person who is arrested shall be detained in custody without being informed of the grounds of such arrest. They shall not be denied the right to consult and defend themselves by a legal practitioner of his choice.Article 22(2) directs that the person arrested and detained in custody shall be produced before the nearest Magistrate within 24 hours of such arrest, excluding the journey time necessary from the place of arrest to the Court of Magistrate.

The Code of Criminal Procedure, 1973

  • Section 49 provides that the police are not permitted to use more restraint than is necessary to prevent the escape of the person.
  • Section 50 lays down that every police officer arresting any person without a warrant to communicate to him the full particulars of the offense for which he is arrested and the grounds of such arrest. Further, the police officer is required 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 offense.
  • Section 176 requires the Magistrate to hold an inquiry into the cause of death whenever a person dies in custody of the police.
  • There are some provisions like Section 53, 54, 57, and 167 which are aimed at providing procedural safeguards to a person arrested by the police.

The Indian Penal Code, 1860 (IPC)

  • A police officer murdering an accused in custody shall be punished for the offense of murder under Section 302.
  • A police officer can be punished for custodial death under ‘culpable homicide not amounting to murder’ (Section 304). The provisions of ‘causing death by negligence’ under Section 304 can also be attracted if the case falls within its ambit.
  • Once the victim has committed suicide and if it is proved that the police officer has abetted the commission of such suicide, then the police officer will be held liable for punishment under section 306.

Punishment for custodial violence

  • If a police officer voluntarily causes hurt or grievous hurt to extort confession, then such police officer shall be punished under section 330 of IPC for voluntarily causing hurt or under Section 331 of IPC for voluntarily causing grievous hurt.
  • A police officer can also be punished for wrongful confinement under Section 342 of IPC.

Compensation to the victim

The court has the power to award monetary compensation in appropriate cases where there has been a violation of the constitutional rights of the citizens. Thus, the court can award compensation to the victims of state violence or the family members of the deceased victim. The Supreme Court directed the Delhi Administration to pay Rs 75,000 as exemplary compensation to the mother of a 9 years old child who died due to beating by the police officer. In Case of Saheli Vs Commissioner of Police.


Today, custodial deaths are prevalent in India. It is one of the worst crimes in our society. Prisoner while in the custody of police is entitled to all rights under Article 21 of the Indian Constitution. Every month a new case is being reported in India. Since the police play a vital role in safeguarding our life, liberty, and freedom, they must act properly. The law cannot deny basic rights like the right to life, liberty, and dignity to someone who is in the police custody and they must be protected.











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