19BAL5033 Forensic

FORENSIC PSYCHOLOGY INCLUDING NEURO LAWS
Topic; Custodial death Parameters of custodial death and

encounter. Difference between police custody and judicial custody.
Constitutional approach to custody.
RANJAN KUMAR (19BAL5033)
Introduction
Custodial death is not a recent concept, especially in India where the
phenomenon of custodial death has been carried out since the times
when India’s sovereignty was in the hands of Britishers. Police
brutality and violence have exponentially grown over the last four-
five years. It reflects a dearth of legal provisions in our judicial
system to reprimand law enforcing authorities for carrying out brutal
practices and resorting to torture by using ‘performance of duty as a
defence.
Police brutality often causes grave injuries to the accused and to

prevent such mishaps, the police forces should be warned to use
reasonable amounts of force. The perception created by the media
against the accused is also a contributor to custodial violence. The
death in the USA due to police brutality led to a whole new
movement “Black Lives Matter”. The death of in the custody of
Tamil Nadu enraged public sentiments and people voiced for having
an adequate mechanism to prevent the police torture. These incidents
highlighted the absence of anti-torture law in India and the voices
have been raised to have an act in place to prevent such incidents
from happening.
What is custodial death
Custodial death refers to the death of an accused during pre-trial or
after conviction. The death is caused by the direct or indirect act of
police during their custody. It includes death occurring not only in jail
but also on medical or private premises, or in police or another
vehicle. Custodial deaths can be classified into three types:
1. The death occurred in police custody.

2. The death occurred in judicial custody.
3. The death occurred in the custody of army or paramilitary
forces.
Custodial death can occur due to some natural sources, where there is
no involvement of any kind of foul play by the police, for example-
instances when a convict or an accused dies of an problem arises
when the law enforcement authority gets involved in the death of an
individual becomes extremely difficult to prove the fault of police in
such cases because of the tactics employed by them. Sometimes, even
before an arrest is made, the accused are tortured by the police
authority which enables the police to claim that the injuries are not
caused due to custodial brutality but have occurred even before the
accused was under the custody of the police. ‘Fake encounters’ is a
term that is doing rounds in the news in the recent past; it is also a
form of custodial death. It is very difficult to establish the liability of
the police and to prove them guilty because when these incidents
occur, all the evidence is with the police; so it becomes next to
impossible to prove their malicious act.
Custodial violence is recognised as one of the most brutal forms of

human rights abuse. The constitution of India guarantees the right to
life and liberty to individuals and prohibits any sort of custodial
torture to take out confessions from the accused. The Constitution of
India calls for the safety of convicts and accused in the police and
judicial lock-ups, but the authorities such as the police undermine
such constitutional structures and carry out custodial violence and
torture. he or she is in their custody.
The increasing number of extrajudicial killings in India is atrocious.
The major form is the encounters by police, military, or other security
forces which challenge the Rule of Law in a civilized
society. Extrajudicial killings manifest outlawed force through which
the person is executed illegally. It is a gross human rights violation
and the reflection of the apathetic criminal justice system in India.
The recent infamous encounters of Vikas Dubey in Uttar Pradesh and
the encounter of 4 accused in the Hyderabad gangrape case in 2019 in
India put intense indignation over the functioning of police and the
legitimacy of the use of force. Also, it puts a lack of faith in the
present criminal justice system among people. The Supreme Court of
India has instructed to set up an enquiry for both the cases.
Judicial and police custody

Usually, custody and arrest are perceived as synonymous. However,
this is not true. Custody means keeping an individual in protective
care based on the apprehension that he or she may cause harm to
society.
The term ‘arrest’ means that an individual is formally taken into

police custody on suspicion of committing a crime. Thus, in every
arrest there is custody but vice versa is not true.
Police custody
When a police officer arrests an individual accused of committing a
crime and brings him to the police station, it is called police custody.
In police custody, the detainee is held for not more than 24 hours in
jail at a police station and during this time the officer-in-charge
interrogates the suspect. Police officers must produce the suspect
before the judge within 24 hours of detention.
Judicial Custody
In Police custody, the accused is kept in the physical custody of police
but in judicial custody, the accused is kept in the custody of the
magistrate of the concerned area. As opposed to police custody,
where the suspect is kept in police lock-up; in judicial custody, the
accused is kept in jail. The police officer in charge is not allowed to
investigate the suspect in judicial custody unless the court opines that
the interrogation is necessary under the facts produced before the
court.
Custody and judicial remand under

CrPC in India
CrPC contains certain provisions with regards to judicial remand and
custody of an individual. According to Section 57 of the CrPC, a
police officer cannot detain a person in custody for more than 24
hours. If a situation arises wherein, a suspect need to be detained for
more than 24 hours, the officer needs to seek special permission from
the magistrate under Section 167 of the CrPC.
Section 57 is known as remand or pre-trial detention. Remand has two
connotations, the first one is to send the accused back to the authority
responsible for its detention and secondly it means to send cases from
the appellate court to the lower court. Section
167(2), 209(b) and 309(2) empowers the court to remand custody of
an accused. All the three sections come into existence at different
stages of a criminal trial. The provision for remand under Section
167(2) of CrPC is associated with the initial stages of investigation, it
is used in furthering the investigation which can be either police or
judicial custody.
Domestic cases associated with

custodial death
Joginder Kumar v. State of U.P and others, 1994
In this landmark case, the Court observed that the rights under
Articles 21 and 22(1) of the Constitution need to be recognised and
must be protected. The Court issued a few guidelines to ensure the
protection of these rights.
 The arrested person should be informed about his or her right

by the police officer when the arrested person is brought to
the police station.
 An entry needs to be maintained in the register which
contains the information about who was informed about the
arrest of the accused.
 Articles 21 and 22(1) should be strictly recognised and
enforced.
 The Magistrate shall determine whether all the requirements
are fulfilled and obeyed by the police authority.
The landmark judgement suggested an important procedural
mechanism which could be proved beneficial if it is implemented in
the right spirit. The judgement is important in the essence that it
recognises the fundamental rights and basic human rights of the
individual and provides a way of protecting them.
J. Prabhavati Amma v. the State of Kerala and others, 2007
The case pertained to the death of a scrap metal shop worker in

custody in Thiruvananthapuram. The hearing of the case lasted for a
decade and the CBI Court ultimately sentenced the two accused
serving personnel to the death penalty.
Justice remarked that the police officers have brutally murdered the
victim and have adversely affected the reputation of the police
institution. The judge also held that such heinous acts cannot be
pardoned because they will affect the law and order and it would
encourage police officers to exercise their power arbitrarily.
Death sentence is a kind of punishment that is rarely awarded but in

this particular case, the Bench adjudged on the basis of gravity of the
offence committed and by awarding death sentence, set a precedent to
prevent such activities in the future.
Conclusion
The statistics presented by NHRC and NCRB reflect horrifying
numbers of custodial deaths. It must be changed. The protection that
police get from the state despite misusing their power is a big issue.
There is a need for monitoring police actions in cases of custodial
death, and police officers who act in male fide must be convicted. A
precedent needs to be set to make the authorities realise that they
cannot exercise their power beyond their limits. If the current scenario
is to be considered, it is very difficult to say that there will be any
improvement regarding custodial deaths. There is a need for stringent
legal action which will be solely dedicated to punishing the personnel
who misused their power and whose brutal force led to a loss of life.
For ensuring the reduction of instances of custodial death, the
guidelines laid down in the landmark cases of D.K. Basu v. State of
Bengal and Prakash Singh v. Union of India need to be strictly
implemented.

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FORENSIC PSYCHOLOGY INCLUDING NEURO LAWS

Topic; Custodial death Parameters of custodial death and

RANJAN KUMAR (19BAL5033)

Police brutality often causes grave injuries to the accused and to

1. The death occurred in police custody.

Custodial violence is recognised as one of the most brutal forms of

Judicial and police custody

The term ‘arrest’ means that an individual is formally taken into

Custody and judicial remand under

Domestic cases associated with

 The arrested person should be informed about his or her right

J. Prabhavati Amma v. the State of Kerala and others, 2007

The case pertained to the death of a scrap metal shop worker in

Death sentence is a kind of punishment that is rarely awarded but in

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