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Does a False pretext of marriage amount to rape -?

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ABSTRACT-

The present research indicates, a question frequently arised in court as to whether sexual intercourse with women constitutes rape if consent was obtained through a false promise of marriage under Section 375 of the Indian Penal Code, 1860. Rape was considered a crime in India, and offenders were punished. Because there is a sense of juvenile freedom in certain parts of the world, the word Marriage may have acquired a very negative aura around it. Marriage is viewed as a holy bond between two people that transcends all physical, emotional, and spiritual barriers. But at the same time on a different note, it is viewed negatively by young people in some societies. You are against it when you are young because your physical body is in a certain mode. Marriage appears to be a bond and a chain. Different religions and cultures treat marriage in a way their holy book prescribes it.  Although the determining factor varies from case to case, the Indian Judiciary has recognized marriage through deception as a crime of rape.

DOES IT AMOUNT TO RAPE – ?

The main difference is consensual sex and non -consensual sex. The broadness of consensual sex has to determined on one of many grounds, whether it falls within the ambit or not. i.e. false promise to matrimony. Consensual sex is defined as sexual activity between the parties that is permitted by both of them. When a man engages in sexual activity with a woman against her will and without her consent, it is called rape.

In the modern world, where couples and cohabitation are common, particularly in urban areas, and are also tolerated by society, also when the mind of the adult is twice grown as the age at present can be said sex is no longer seen as taboo. Consensual sexual liaisons between two men and women are now perceived as a liberating act rather than a sin in today’s evolving environment. As a result, a distinction between consenting sexual activity and rape has been made in some instances, especially where there is a high risk of abuse.

[1]In one instance (Saleha Khatoon v. State of Bihar, 1988), the prosecution procured consent for sexual activity in return for a fictitious promise of marriage. Following the filing of a complaint, a police investigation was conducted, and the police report, which was submitted in accordance with Section 173 of the Criminal Procedure Code, established a case of violation under Section 376 of the IPC.

However, the judge tried the defendant under Section 498 for detaining a married woman rather than Section 376 for rape, most likely because the prosecutor was already married

Obtaining consent through deception, deception, or unsuitable persuasion is another method of Rape. Consent is crucial when committing rape. Depending on whether or not consent has been given, sexual activity is either legal or illegal.

Consent may be given voluntarily or fraudulently, compelled or uninformed, implicit or explicit, informed or uninformed. A violation of Indian law is having a sexual relationship while being falsely promised marriage. Soliciting sexual consent under the guise of marriage does not exonerate a person from rape accusations. If a man makes a woman a false promise that he will marry her so they can have a sexual relationship even though he has no intention of doing so, and she accepts the promise, then the consent was obtained fraudulently.\

 SECTION 375 & 90 OF IPC DEFINE RAPE AND CONSENT

  1. Rape.—A man is said to commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under circumstances falling under any of the six following de­scriptions:—

(First) — Against her will.

(Secondly) —Without her consent.

(Thirdly) — With her consent, when her consent has been obtained by putting her or any person in whom she is interested in fear of death or of hurt.

(Fourthly) —With her consent, when the man knows that he is not her husband, and that her consent is given because she believes that he is another man to whom she is or believes herself to be law­fully married.

(Fifthly) — With her consent, when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupe­fying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent.

(Sixthly) — With or without her consent, when she is under sixteen years of age. Explanation.—Penetration is sufficient to constitute the sexual intercourse necessary to the offense of rape.

(Exception) —Sexual intercourse by a man with his own wife, the wife not being under fifteen years of age, is not rape.] STATE AMENDMENT

(Manipur) —(a) in clause sixthly, for the word “sixteen” substitute the word “fourteen”; and[2]

Section 90 defines the situations in which the consent apparently to be given by a person is not sufficient for purposes of the Code. It was suggested that consent obtained from a person by putting him under hypnotic or other occult influence should be specifically mentioned in the section. [3]

JUDICIAL ANALYSIS –

In numerous cases, the Supreme Court of India has explained the distinction between a promise and a false promise and breaking it.

In the case of Naushad (State of Uttar Pradesh v. Naushad, 2013), the defendant had been seeing the prosecutor for the previous two years and had thought that he would marry her. On the basis of this assurance, the defendant Naushad vowed to wed the victim and frequently engaged in physical contact with her.She was raped, and as a result, she got pregnant.

The defendant was found guilty of betraying her trust by refusing to wed her and given a life sentence for raping her while pretending to be engaged in a fake marriage The defendant also allegedly obtained her consent in accordance with Section 90 of the IPC in the mistaken belief that he could wed her.

In the Sachin case (Sachin @ Devendra Gajanand Sangray v. State of Gujarat, 2015), the accused and the victim had been in a live-in relationship and cohabiting in Surat, Gujarat for a year. They were also coworkers. Due to a personal feud that started between them on March 1, 2012, they broke up after a year. On March 10, 2012, he visited the girl’s home to extend an invitation to his wedding on March 12, 2012. The girl’s complaint claims that the defendant  raped her after pretending to want to marry her.[4]

As stated earlier it depends from case to case in a recent judgement, Orissa high court has declared the SEXUAL INTERCOURSE ON THE FALSE PRETEXT OF MARRIAGE does not amount to rape

The court made the observations last month while granting bail to a man accused of raping a woman on the pretext of marriage.

“A consensual relationship without even any assurance, obviously will not attract the offence under section 376 (punishment for rape) of the Indian Penal Code. The law holding that false promise to marriage amounts to rape appears to be erroneous,”

[5]“It is an undeniable fact that our society is still largely conservative when it comes to matters of sex and sexuality. Virginity is a prized element. The victim being a major girl with a sound mind, there seems to be no question of anyone being in a position to induce her into a physical relationship under the assurance of marriage. There could be a possibility of experimentation with erotic asphyxiation which is very much part of their sexual autonomy,” the judge said.[6]

CONCLUSION

“While a murderer destroys the physical frame of the victim, a rapist degrades and de les the soul of a helpless female.”(Tulsidas Kanolkar v. State of Goa, 2003)

Perhaps most significantly under Indian law, ending a marriage engagement after having sex does not automatically constitute rape. Due to the absence of probate legislation, rape by false promise of marriage cases are decided at the court’s discretion after taking all relevant factors into account.

There must be some use of force and a complete lack of consent in order to prove the first aspect of rape. First-degree rape is defined as coerced sexual contact with the victim’s consent. Furthermore, rape in the second degree, which carries a less severe punishment than rape in the first, may be defined as consent obtained through a mistake of fact, misrepresentation, or deception.

The best form to come to a decision in this area of cases is to follow the Latin maxim which is the very basis of law Audi alteram partem listen to the other side”, or “let the other side be heard as well[7]

Written by – Steffi Desousa

[1] file:///C:/Users/Steffi%20Desousa/Downloads/JPSP+-+2022+-+7.pdf

[2] https://indiankanoon.org/doc/623254/

[3]https://www.advocatekhoj.com/library/lawreports/indianpenalcode/26.php?Title=Indian%20Penal%20Code&STitle=Section%2090#:~:text=Section%2090%20defines%20the%20situations,specifically%20mentioned%20in%20the%20section.

[4] [4] file:///C:/Users/Steffi%20Desousa/Downloads/JPSP+-+2022+-+7.pdf

[5] https://www.hindustantimes.com/india-news/consensual-sex-on-pretext-of-marriage-not-rape-orissa-hc-101673290400807.html

[6] https://www.hindustantimes.com/india-news/consensual-sex-on-pretext-of-marriage-not-rape-orissa-hc-101673290400807.html

 

[7] https://en.wikipedia.org/wiki/Audi_alteram_partem

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A complaint filed only as a result of business rivalry and in an act of revenge shall not withstand: Gujarat High Court grants bail in rape proceedings to the applicant-accused

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Rahulbhai Natubhai Vaghela vs State Of Gujarat on 12 June, 2023

Bench: Honourable Justice Nirzar S. Desai

R/CRIMINAL MISC.APPLICATION NO. 8731 of 2023

Facts

By way of the present application under Section 438 of the Code of Criminal Procedure, 1973, the applicant – accused sought anticipatory bail in connection with the FIR bearing for the offences punishable under Section 376 of the Indian Penal Code. Section 376 deals with rape. As per section 438 of the CrPC, when any person has reason to believe that he may be arrested on an accusation of having committed a non- bailable offence, he may apply to the High Court or the Court of Session for a direction to grant bail.

Learned advocate for the applicant submitted that the nature of allegations were such for which custodial interrogation was not necessary. He further submitted that the applicant would keep himself available during the course of investigation and trial and would not flee from justice.

Learned advocate for the applicant on instructions stated that the applicant was ready and willing to abide by all the conditions including imposition of conditions with regard to powers of Investigating Agency to file an application before the competent Court for his remand.

The Learned Additional Public Prosecutor appearing on behalf of the respondent – State opposed grant of anticipatory bail looking into the nature and gravity of the offence.

Judgement

Having heard the learned advocates for the parties and perusing the material placed on record and taking into consideration the facts of the case, nature of allegations, gravity of offences, role attributed to the accused, the Court granted anticipatory bail to the applicant.

The Court held that the FIR was registered almost 3 months after the incident and had lost its value.  It also observed that one complaint given by same complainant against the present applicant was that both persons were carrying on business at the same place and the present applicant was head-strong. Though she alleged that the offence had taken place she had not stated anything about the alleged incident of rape committed by the applicant while filing the complaint

The court observed that prima facie this was an offence just on account of business rivalry between the parties. There were no antecedents attributed against the present applicant. Hence, the Court allowed the present application and the applicant was ordered to be released on bail

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Written by- Aadit Shah

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Delhi High Court Dismissed the petition filed for Quashing of FIR under IPC & POCSO act

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Title: MOHD. AMAAN MALIK vs THE STATE GOVT NCT OF DELHI & ANR.

Reserved on:29.05.2023

Pronounced on:05.07.2023

+ CRL.M.C. 7121/2022 & CRL.M.A. 8829/2023

CORAM: HON’BLE MS. JUSTICE SWARANA KANTA SHARMA

Introduction

The Delhi High Court Dismissed a petition for the quashing of FIR No. 162/2021, has been filed on behalf of the petitioner under Section 482 of the Code of Criminal Procedure, 1973 (the “Cr.P.C.”) for acts punishable by Sections 363/366A/376/505 of the Indian Penal Code, 1860 (the “IPC”) and Section 6 of the Protection of Children from Sexual acts Act, 2012 (the “POCSO Act”).

Facts of the case

The present FIR was filed on 29.05.21 based out-off the statement of victim. Victim and her mother had shifted to wazirabad from daryaganj two months prior to the incident. She met the accused Mohd. Amaan Malik, a native of Daryaganj in Delhi, who was around 20 years old, while she was attending classes there while she lived there. They had become pals at the tutoring centre and had begun using mobile phones to communicate. The defendant had phoned her at Sabzi Mandi and driven her in his automobile to a guest home in Sarai Kale Khan. After that, he had provided her drink and engaged in sexual activity with her without her permission. The victim also claimed that the accused had started using her as leverage by threatening to post her inappropriate photos on social media. As a result, the victim claimed that the accused had repeatedly taken her to Sarai Kale Khan’s guest house where he had forcibly engaged in sexual activity with her.

She discovered she was pregnant on April 7, 2021, and told her mother about it. Her mother then phoned the accused and informed them of the pregnancy. Amaan, the suspect, then went to the victim’s home and threatened both the girl and her mother. At Turkman Gate on April 9, 2021, he married the victim by intimidating her mother. He then took the victim and her mother to sign the marriage licence. He then began sharing a rental home with the victim in Wazirabad, close to her mother’s home.

Accused threatened the woman, beat and molested her, and put pressure on her to get an abortion. She had requested that the accused take her to her marital house, and he had responded that he had merely conducted the marriage to get rid of her. The victim underwent a medical examination at LHMC Hospital as part of the inquiry, and a positive pregnancy test result was obtained. She had verified her statement, which was recorded under Section 164 of the Criminal Procedure Code. Her pregnancy was ended at LHMC Hospital and the foetus was saved after additional research. The suspect was detained on May 29, 2021. Blood samples from the victim, the victim’s foetus, and the accused were collected, and sent for DNA examination. The accused/petitioner was identified as the foetus’ biological father by DNA testing. It was discovered over the course of the inquiry that the victim was married. Her date of birth, which was discovered in her school records to be 12.05.2004, meant that she was 17 years old when she legally wed the accused.

Analysis of the court

Before arriving at the conclusion, the Delhi High court referred to the principles laid down in State of Haryana and Ors. v. Ch. Bhajan Lal and Ors.1992 SCC (Cri) 426 by the apex court, which is to be considered while quashing a FIRs and it also analysed the verdict of the apex court in the case of Neeharika Infrastructure v. State of Maharashtra 2021 SCC OnLine 315, and culled out the relevant principles that govern the law on quashing of FIRs under Section 482 of the Cr.P.C.

Based on the facts of the case the high court was of the opinion that on prima facie terms this was a case of sexual assault which had taken place in 2021 and due to societal stigma and pressure the victim was forced to marry the accused which got established from the date mentioned in Nikahnama, It was undisputed that the victim was a minor throughout this entire time. The Nikahnama dated 09.04.2021 further demonstrates that, considerably later than the alleged sexual assault of the victim, the victim was still a juvenile and had not yet reached the age of majority.

The Court also mentioned the controversy around the age of marriage in muslim personal law and applicability of POCSO act, it cited several judgements from various high courts as, In Aleem Pasha v. State of Karnataka 2022 SCC OnLine Kar 1588, the Hon. Karnataka High Court noted that Muslim personal law will be superseded by the POCSO Act, a unique piece of legislation designed to protect minors from sexual assaults. Earlier, in Rahul v. State of Karnataka 2021 SCC OnLine Kar 12728, the Hon’ble Karnataka High Court made a similar observation. The Hon’ble Kerala High Court recently ruled in Khaledur Rahman v. State of Kerala & Anr. 2022 SCC OnLine Ker 5833 that marriages between Muslims under personal law are not excluded from the POCSO Act’s purview and that if one of the parties to the marriage is a minor, offences under the Act still apply regardless of whether the marriage is valid or not. The Court, while referring to Section 42-A of the POCSO Act observed that the POCSO Act will prevail over personal laws and customary laws.

While on the other hand the delhi high court also took of  the Hon’ble Punjab and Haryana High Court held in the case of Gulam Deen v. State of Punjab 2022 SCC OnLine P&H 1485 that a Muslim girl beyond the age of 15 is competent to engage into marriage and that Muslim personal law governs a Muslim girl’s marriage. The National Commission for the Protection of Child Rights (NCPCR) filed Special Leave Petition (Criminal) No. 26834/2022 in opposition to the aforementioned ruling, and the Hon’ble Apex Court decided to consider the issue of whether a young Muslim girl can marry after reaching puberty. The Hon. Punjab and Haryana High Court in Javed v. State of Haryana, CRWP-7426-2022(O&M), it was determined that Muslim women who were 15 years old or older might wed someone of any race. In accordance with Section 12 of the 2006 Prohibition of Child Marriage Act, such a marriage would not be invalid due to the girl’s free will and agreement. However, the Hon’ble Apex Court ruled on 13.01.2023 in Special Leave Petition (Criminal) No. 35376/2022 submitted by NCPCR that the ruling in the matter of Javed (above) should not be used as precedent in any subsequent cases. In a nutshell, as of now, the question of whether a female who reaches puberty and the age of majority after turning 15 is still considered a minor would be governed by the provisions of the POCSO Act/Child Marriage Restraint Act or not, is pending for consideration and adjudication before the hon’ble Apex Court. As a result, there are inconsistent rulings over whether the POCSO Act and the Child Marriage Restraint Act, or the personal law, will apply to a juvenile who is married under Muslim law. In any event, the claims of rape in this case are made before the couples’ marriage rather than after it, thus the court will not discuss the legitimacy of the marriage between the present petitioner and the victim.

In any case, in the current case, the minor victim expressly denies that any sexual relationships were established with her consent and describes the specifics of her initial sexual assault and subsequent sexual assaults under the threat of having her inappropriate photos made public. In these circumstances, the present case is not covered by the cases of Bhajan Lal (previous) or Neeharika Infrastructure (previous), and this Court cannot conclude from the merits of the case that the allegations against the petitioner are baseless or improbable or that the alleged offence could not have occurred.

However, this circumstance is frightening and serves as a harsh warning reminder. Occasionally, after a sexual attack, a troubling trend develops in which the accused marries the victim, In an apparent attempt to avoid being charged with a crime, they immediately desert the victim if the FIR is dismissed or bail is obtained.

This Court is not disposed to utilise its inherent authority under Section 482 Cr.P.C. for the purpose of quashing the disputed FIR in light of the overall facts and circumstances of the case. However, given that the charge arguments have not yet been heard, the issues brought before this Court can be raised before the competent Trial Court, where they will be resolved in accordance with the law. As a result, both the current petition and the awaiting application are dismissed.

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Written By – Shreyanshu Gupta

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₹14 lakh compensation to the minor victim girl orders Madras High Court; criticises Legal Service Authority for seeking dismissal of case.

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Title:  T. Kaliammal         

                Versus

         The State of Tamil nadu and Ors.      

Date of Decision: 26.06.2023.           

Coram: THE HONOURABLE MS. JUSTICE P.T. ASHA.

Citation: W.P.(MD) No.3252 of 2020 and W.M.P.(MD) No.2758 of 2020.

Even though a special court had ended all proceedings in the case when the accused passed away while the trial was still ongoing, the Madras High Court recently awarded compensation of 14 lakh to a minor, mentally challenged rape survivor. Justice PT Asha noted that the local special court had done the physically and mentally handicapped survivor and her family more disservice by dismissing the case.

Introduction:

The petitioner, who is the mother of a mentally challenged daughter, who has been ravaged and impregnated by a “wolf in sheep’s clothing”, old enough to be her father, has knocked at the doors of this Court seeking compensation for this wrong inflicted on her daughter. The family comes from indigent circumstances. The mother is an agricultural coolie and the father works as a Watchman in a private company. They are blessed with two children, a son aged about 18 years, who is undergoing his B.Com course at Mano Arts College in Thoothukudi District and a daughter, who is the victim. The victim is mentally as well as physically challenged. Since the husband is employed at Chennai, the mother and children are living alone. Being an agricultural coolie, the petitioner is forced to leave the daughter alone W.P.(MD) No.3252 of 2020 and go for her work. The accused, who is about 55 years of age and a neighbour, had taken advantage of the victim’s physical and mental disability and has committed aggravated penetrative sexual assault on her not once, but on several occasions. The condition of the victim is such that she was not even in a position to narrate the ordeal to her mother. It was only when she had become pregnant, that the mother came to know about the same and immediately, a complaint was lodged at All Women Police Station, Kadambur, Tuticorin, and an FIR too was registered under the Protection of Children from Sexual Offences Act, 2012 (hereinafter referred to as “the POCSO Act”). The petitioner has moved this Court for a mandamus to terminate the pregnancy, provide police protection to the petitioner and her family members and to provide reasonable fair and compensation to the victim.

Legal Analysis:

The judge stated that despite the prohibition under Section 362 of the Code of Criminal Procedure (CrPC), the High Court has the authority to right this injustice. “This closure is yet another move that has done the victim significant injustice and, in some ways, demonstrates the indifference shown to the victim’s plight. The bar under Section 362 of the Code of Criminal Procedure would go into effect once the case was closed, making it impossible for the victim to seek additional compensation from the Court. Therefore, the petitioner contacted this Court appropriately. The Court stated that it had the authority to right this mistake. The Thootkudi District Legal Services Authority (DLSA) was also criticised by the court for how it handled its efforts to have the lawsuit dismissed.

The mother of a the victim girl who was discovered to have been regularly raped and impregnated by their 55-year-old neighbour had petitioned the court for just compensation. The case was already concluded by the special court since the defendant passed away while the trial was ongoing. The victim’s pregnancy was ended per the High Court’s directives, and she was given an interim settlement of Rs. 1 lakh. The District Legal Services Authority indicated in a counter-affidavit that the High Court’s request for compensation might be dismissed because the special court had concluded the case. The authority was criticised by the High Court for its callous and insensitive behaviour. “The fifth respondent has washed its hands of the issue and prays that the writ petition be dismissed instead of helping the Court attempt to rehabilitate and recompense the victim, who is a mentally and physically handicapped girl. It’s best to say as little as possible about the counter, said Justice Asha. The Court further determined that the victim was qualified to receive the maximum amount of compensation that may be paid under the various compensation plans. The Protection of Children from Sexual Offences Act (POCSO Act) established the Tamil Nadu Child Victim Compensation Fund, and the court ordered the Thootkudi District Legal Services Authority (DLSA) to pay the victim’s compensation amount from that fund.

Judgement:

This Hon’ble Court by exercising jurisdiction under Article 226 of the Constitution of India directs that a compensation of a sum of Rs.14,00,000/- (Rupees Fourteen Lakhs only) be paid to the victim. This sum shall be deposited in an interest-bearing account with the mother as the guardian. The mother shall be permitted to withdraw interest every month. The said sum shall be utilised only for the up keep and the rehabilitation of the victim. The District Child Protection Officer shall visit the home of the Victim once in three months and submit a report to the District Legal Services Authority, Thoothukudi. The District Legal Services Authority shall ensure compliance of the above. In case, the report would state that the amounts are not being used for the welfare of the victim, then an application shall be made to this Court for modifying the orders by the District Child Protection Officer. In case, the mother requires substantial amount for the benefit of the victim, she can make an application to this Court for appropriate order. The amount of Rs. 14,00,000/- shall be paid from and out of the Tamil Nadu Child Victim Compensation Fund by the fifth respondent within a period of four weeks from the date of receipt of a copy of this order and report compliance to this Court.

Conclusion:

This is a tragic case in which the accused aggravated penetrative sexual assault against the victim, a minor with mental disabilities, not just once, but multiple times. Unfortunately, he had already passed away before he could get any legal penalty. The Special Court closed the matter as charge abated without complying with Section 33(8) of the POCSO Act and Rules 7(1) and 7(2), The judge also directed the DLSA to ensure that the money was used only for the victim’s rehabilitation.

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JUDGEMENT REVIEWED BY JANGAM SHASHIDHAR.

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Law and Custodial Death.

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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.

Introduction:

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 Custody: When 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.

Conclusion:

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.

References:

https://www.educentric.in/blogdetails.html?id=327&blog=case%20summary%20dk%20basu%20v.%20state%20of%20west%20%20bengal

https://lexforti.com/legal-news/custodial-death-in-india/#_ftn33

https://www.latestlaws.com/articles/rights-of-prisoners-against-custodial-torture-in-india-by-shivam-jasra/#_ftn9

https://www.thehindu.com/news/national/five-custodial-deaths-in-india-daily-says-report/article31928611.ece

https://ncrb.gov.in/hi/crime-in-india-table-addtional-table-and-chapter-contents?page=18

https://thewire.in/rights/custodial-deaths-in-india-are-a-cold-blooded-play-of-power-and-class

https://www.drishtiias.com/daily-updates/daily-news-analysis/custodial-1#:~:text=Custodial%20death%20is%20a%20death,or%20abuse%20by%20the%20authorities.

https://legalserviceindia.com/legal/article-9887-custodial-deaths-in-india.html

https://www.lawctopus.com/academike/custodial-deaths-india/

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 ARTICLE WRITTEN BY: JANGAM SHASHIDHAR.

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