235

Chapter-8

Results and Discussion 8.0 Results The result in this section provides themes that emerge across the individual case

narratives dealing with phenomena of custodial crimes in police custody. It highlights the

process by which custodial crimes are dealt in police custody. It also examines causative

factors, consequences and preventive measures. These cases also provide an insight into

the perceptions of multiple stakeholders in their own language in the context of custodial

crimes.

8.1 Process of Police Custody:

The Institution of police custody is supposed to play preventive and investigative

functions. The study set out to examine the criminal process within the institutional frame

of police system by wherein violence against a person in the custody of police meted out

and constitute custodial crimes in police custody. Custodial crimes begin with arrest and

detention in custody. Across the cases, it was found that taking an individual into custody

by police is a dynamic process. It includes lock ups at the police station, police post (

chowki) and police raids .The police custody includes arrest and detention of a person as

well as search and seizure of property by police whether informal or formal in connection

with investigation of an offence. Sections 41,42,46,47 and 51 of the Code of Criminal

Procedure, 1973 prescribe the manner of arrest, mode of arrest, search of person and

place and seizure of property whether moveable or immovable for the purpose of law.

Although prohibited under Indian and International law, the arbitrary arrest and illegal

detention is common in every part of India. The Constitution of India under Article 21

and 22 and provision of sections 50, 53, 56 and 57 of the Code of Criminal Procedure,

1973 mandate that no person can be detained in custody without knowing the grounds for

arrest, and that a detainee must be presented before a Magistrate within 24 hours of

arrest, medical examination and consultation of lawyer of his/her choice during the

detention period in custody.

236

Article 9 of the Universal Declaration of Human Rights, as well as Article 9 of the

International Covenant on Civil and Political Rights, emphasize that no one shall be

subjected to arbitrary arrest, detention or exile. Arrest involves restriction of liberty of a

person arrested, and therefore, infringes the basic human rights laws, recognizes the

power of the State to arrest any person as a part of its primary role of maintaining law and

order. The Constitution requires a just, fair and reasonable procedure established by law

which alone such deprivation of liberty is permission. The National Human Rights

Commission has been observing since its inception that a large number of complaints

pertaining to human rights violations are in the area of abuse of police powers,

particularly those of arrest and detention. Therefore, with a view to narrowing the gap

between law and practice, the Commission found it necessary prescribes guidelines

regarding arrest, even while at the same time not unduly curtaining the power of the

police to effectively maintain and enforce law and order and proper investigation. The

NHRC’s guidelines regarding arrest were sent to the Chief Secretaries of all the States

and Union Territories on 22 November 1999, with a request to translate these guidelines

into their respective regional languages and making them available to all police officers

and in all police stations for compliance. However, it has been observed in the present

study during the field work that peoples are kept in the reporting room of the police

stations couple of days without entry made in the general dairy(GD) and non-producing

them before Magistrate so called Kachchi Hawalat ( informal custody). Generally, they

are suspects. Once the entry made in general diary ( GD) of police station and to put him

a suspect into lock ups which referred by police as Pakki Hawalat (formal). The cases

reveal that individuals are taken into police custody for different reasons such as being

suspects, accused, witness, complainant and person in crisis (injured person). Being in

police custody an individual was under the control of the authority. The significant fact is

that time and again, it has been observed and documented by various Commissions and

Committees that the tendency of police to arrest and detention of persons without

warrant1. ____________________________________

1. National Police Commission, 1979-81;

• National Human Rights Commission ‘s Annual Report since 1993-2005;

• Padmanabhiah Committee Report,2000;

• Law Commission of India, 2001.

237

8.1.1Police Lock- Ups

Out of twenty eight, seven police stations have been visited for the purpose of the present

study. All the seven police stations, there were separate lock- ups for men and women.

However, women lock-ups were guarded by male police officers and all the women lock

ups found in pathetic condition. Most of the women lock-ups were either locked or filled

by garbage, materials and old vehicles. These women lock ups are under utilization. The

police personnel argued that women offenders are very less in this district as well as the

number of existing lady police staff is also inadequate. In some cases, the services are

also taken from Home Guard lady officer on temporary basis. Generally, the police avoid

arrest of the female offenders after sunset or night time. The women offenders asked to

sit in the crime reporting rooms in the presence of women constable or lady home guard

as case may be. The facilities in the police lock ups were pathetic. First of all, there was

no ventilation and no electricity for lighting. In some cases, the old police stations are

having dry latrine in the cells without water facility inside the lock ups caused smell in

the cells. There was no proper sanitation facility in the lock-ups. They do not have any

provision for appointment of a permanent cleaner. The police employ temporary safari

Karmchari and he is paid amount Rs. 250/- per month.

There is no provision of bedding inside the lock –ups. One can see only black color

blankets in all the seasons throughout the year. However, the water facility is provided by

the police station as and when it required to the detainee in lock-ups (in plastic bottles).

The food is prepared by Falwar in two times in a day for detainees at the rate of Rs. 5 per

diet per person which is adequate in the light of rising cost of market price. In few cases,

there is no proper mess arrangement like space, gas or stove etc which created other

problems for the cooks in cooking the food.

In this regard, minimum food balanced diet chart was prepared for a person held in police

custody by the National Human Rights Commission has worked out a suitable diet chart

in consultation with National Nutrition Institute, Hyderabad. Though both vegetarian and

non-vegetarian scales were worked out, the Commission recommended only vegetarian

diet and the cost comes to Rs. 16/- per day. The National Human Rights Commission had

238

written to all the Chief Ministers of States on October 25, 1996, to revise the diet

allowance of the undertrial prisoners in police custody ( NHRC/ Prisons-II/96-223 dated

25th February, 1997). In case of emergency medical treatment, the persons are taken into

custody are referred to the nearby Hospitals in the city, Primacy Health Centre (PHC) and

Community Health Center ( CHC) in town areas as case may be. Although first Aid

boxes were available in the police stations for immediate medical treatment to the

persons in custody but hardly police personnel were aware about prescription of the

medicines. The police officers did not show Fist Aid Box to the researcher during the

police stations visits.

The basic legal rights of the detainee in police custody are not always safeguarded. The

detainees are not produced to the nearest Court within 24 hours of their arrests. The

police officers felt that 24 hours is less time to investigate the case because of burden of

other non-police work like maintain law and order, V.I.P. security, public agitation,

electricity, and municipal related matters etc. In result of that, the suspects/accused are

forced to stay in the police station many days without made an entry in the general diary

(GD). It is called Kacchi Hawalat. Police conduct investigation only those cases which

are entered in general diary ( G.D. or Pakki Hawalat. The police do not consider Kacchi

Hawalat as illegal custody. The police expressed that it is the part of the investigation and

the way police function. Some police officers argued that it is happening throughout

country in the lack of manpower and time constraints with investigating officers.

Generally, the visitors are not allowed to meet a person in police lock- ups. It was

observed that some influenced persons such as lawyers, political workers and media

persons meet the accused in police lock ups for registering of First Information Reports

(F.I.R) and negations between police and accused or complainants.

8.1.2 Police Post

The police custody does not confined to police lock-ups but goes beyond police station

such as police post or police chowki and also described as police sub-station in the UP

police manual. Police post is lowest unit of police functioning. A few police posts were

239

visited by researcher in the field. It has been seen that no detention cell available at the

police post level, however, the police do arrest for inquiry and refer him/her to the

concerning police station to entry in general diary which constitute police custody as per

police version.

8.1.3 Police Raid

Apart from lock ups and post, the other dimensions of police custody includes police

conduct raid to the family/friends/ relatives in search of accused/suspects/ witnesses as

well as seize property. After the seizure of property by police in any particular situation,

it continues to be retained in custody for a long time even though it may not really be

required for the purposes of the case.

8.1.4 Socio-Economic and Demographic Background of Victims

The study reveals homogenous of 10 male individuals victims of custodial crimes in

police custody in the context of district Muzaffarnagar of the state of Uttar Pradesh. The

individual victims are mostly from poor section of society across the caste and religion

(Hindu and Muslim) with low educational background. It has been found that out of 10

cases, half of them belong to urban and other half hail from rural area and engaged in

either agriculture laborer (4 cases) or services in professions like painter, singer, worker

in bakery and driver (4 cases). Only in two cases the victims were running their business

like jewellery shop and hotel or restaurant. Their annual income between Rs. 10,000 to

20,000 (5 cases), between Rs. 21,000 to 30,000 (4 cases) and only case was above the Rs.

30,000 annual income. In 5 cases the victims were unmarried and the same number of

married persons who left a number of dependents such as spouse, children, sibling and

parents. On their detention, the duration of holding in police custody ranged from

between 3to6 days (6 cases), between 3 to6 days (3 cases) and between 7 to 10 days (1

case). 7 out of 10 cases having no criminal background which indicates that they have

experienced first time police custody and also not a criminal person by nature. The

reasons behind their custody were accused (4), suspects (2), complainants (2), one

witness and an injured person.

240

8.2 Treatment in Police Custody:

Underlying the factor behind the treatment of police custody. Across the cases the pattern

emerged of treatment in police custody includes physical, mental and sexual torturing of

suspects, accused, witness, complaints, and family members and even injured person in

police custody.

8.2.1 Physical Torture: Physical beating by stick or fatta (made of half wood and half

rubber) tied with hands and legs and falanga (beating on sole) found the common form of

physical torture in police custody (police used term like idiom-Sudharak (Reformer), An

Milo Sajana (when we meet) and Phir Millege ( will meet later). Beating in public place

found in cases of (Satawala and Sikayatwala and Aropewala), beating by both police and

complaint party to person in police custody also seen in case of ( Dhavawala). This apart,

restricted or denial of food and water in police custody during detention period to

detainee constitutes another method of physical torture ( Machinewala).

8.2.2Mental Torture : Individuals were kept in police custody from 1 to 13 days caused

of metal sufferings. The family members of victims have experienced police use of

abusive language as an instrument of mental torment to visitors, relatives or friend. It

was used to make them feel that they do not have any dignity. For example, bother of

Machinewala stated that his brother was complained about denial of food and water

during police custody in Kotwali police Station ( deprivation of basic amenities during

detention in police lock-up of a detainee). The family members of satawala were not

allowed to meet the accused in police lock-up. When mother of victim (Bandwala)

brought tea to serve her son in the police lock up, the police not only denied her access to

police lock up but also thrown out tea on her body that caused burnt spots on her body(

insult and humiliating). In Bakerywala’s case, the mother of Bakerywala faced threat of

sexual harassment when she resisted police arbitrary arrest of her sons, “ Agar ye chup na

rahe to Iska petticoat utha do” ( if she does not shut up her mouth, loose her skirt) this

added the evidence of threat of sexual harassment used by the police towards victim’s

family.

241

8.3.3 Use of Chemical Substances in Torture

Among the 10 case studies, 3 cases were related with application of chemical substances

as torture methods in police custody. The victims were made to consume chemical

susbstances or poison such as Aluminum Phosphate poison (Machinewala) and

Potassuim phosphate poison (Sattawala and Bandwala) in police custody.

8.4 Forms of Custodial Crimes in Police Custody

The study reveals four kinds of custodial crimes in police custody as followings;

1. Illegal detention ( 1 Case )

2. Torture( 1 Case)

3. Deaths ( 6 Cases)

4. Disappearances ( 2 Cases)

8.5 Perceived Police Torture (Causative Factor)

Almost in all cases, the family and community members perceived the police torture as

one the most visible cause of custodial crimes in police custody. The brother of

Bakerywala (who also spent one day in police custody) experienced illegal custody and

police beating. He has also eye witnessed of police inflicted torture on his elder brother

(Bakerywala) in custody. Aropewala’s mother came to know the fact that her son was

forcefully taken out form Bus (through Aropewala’s friend) and brutally beaten him up

consequently his death in custody. In a another case of Sattawala’s wife said that her

husband was crying and telling her in the civil hospital that police from Budhana Police

Station tired his legs & hands and forcefully fed him sulphas tablets( chemical

substances. Similarly, brother of Machinewala alleged that his brother was complained

about inflicted torture by police in custody. The mother of Bandwala narrated that her

son was beaten up by police in market (everybody has seen the incident). Similarly, the

mother of Driverwala reported about illegal detention, infliction of torture and

disappearance of corpse in the first information report. The wife of Sikayatwala has seen

her husband tied with tree and merciless beaten by police in custody. For example,

Chitwala’s mother said that police left her son on the road after one day detention in

242

custody. He (Chitwala) was unable to walk properly somehow he managed and complaint

of police beating before his death in the hospital. In case of Driverwala, his mother said

that her son vomited in the police custody.

8. 5.1 Police Torture and Corruption (Causative Factor)

In some cases, the families of the victims & neighbors etc told that the police demanded

bribe directly from the family members of the accused or through middleman.

Aropewala’s mother received communication from the police demand of Rs. 20,000/-

(Rupees Twenty Thousands) for release Aropewala from custody. Another example like

Sattawala’ brother alleged that police has demanded Rs 1, 00,000(One Lac) through a

middlemen for release Sattawala from custody of Budhana Police Station.

8.5.2 Police Torture and Collusion (Causative Factor)

Valuable insights from the people and evidences indicate that police in connivance with

powerful person used force (torture) against accused/ suspects in police custody. In case

of Mahinewala, the village headmen perceived that the police were influenced the by

truck owner (complainant) and brutally beaten to Machinewala cause death in custody.

Driverwala’s brother alleged that police handed over driverwala to the opposite party in

custody and was mercilessly beaten by both police and opposite party and this resulted

driverwala died in police custody. Sikayatwala’s wife statement due to (old personal

rivalry) who were instigated police to use force (torture) against my husband.

8.5.3 Police Communication for Compromise (Causative Factor)

Across cases the family members indicated that communication from police was in terms

of compromise the matter with money, withdrawal of criminal charges or action against

opposite party( rival party and complaints) etc.

In case of Machinewala, the villagers were perceived that police offered 1 lac to the

mother of Machinewala for non-registration of a complaint of custodial death. But she

did not accept it. In case of Dhavawala police paid 1.5 lac rupees to the mother of

davawala for filling affidavit for death of davawala was not taken place in police custody.

243

According to police constable, “It was very tense situation in Khatoli town due to

demonstration by local people and politician against police on davawala’s death.

Therefore, In-charge of Khatoli police station paid money to the mother of davawala for

settlement of the case. A local media person told about police paid money Rs. 1.5 lac to

the mother of Aropewala for giving statement in their favour. Another example, the

Bakerywala’s mother got offer of Rs. 1 lakh from local police to compromise the matter.

However, she refused it.

In contrast the Sikayatwala’s wife stated that police has been demanded a sum of Rs.

10,000(Rupees Ten Thousand) and withdrawal of criminal case registered against police

for murder of her husband in custody. In the return, police made a promised to her for

withdrawal of criminal charges against her sons in murder case. And will take action

against rival party who were involved in the conspiracy against her family. This way

police managed the victims and witness to weaken the case at initial stage.

8.6 Consequences of Custodial Crimes

The process of custodial crimes in police custody is painful. Moreover, its impact on

victims (primary, secondary and tertiary) reaches far beyond immediate pain. Victim

includes (individuals, families and communities). Individual victims whose life and

liberty deprived in police custody as illegally detained, tortured, murdered and

disappeared (Primary victims). As a result, they left behind their next- of- kin (spouses

and children as Secondary victims) and parents, sibling, relatives as well as community at

large (Tertiary victims). Across the cases, it was found that most the victims suffer from

physical, psychological, social, economical and political consequences. This apart, cost

of custodial crimes as development consequence.

8.6.1Physical Consequences:

Physical effect which includes symptoms of body pain, leg pain, arm pain, back pain,

headache, swelling ( eyes) heart problem, problem in cooking food and other domestic

work.

244

8.6.2 Psychological Consequences:

Psychological or post-traumatic stress disorder signs and symptoms are depression,

anxiety, irritability, nightmares, flashback, phobia, sleeping problem, hunger problem and

feeling of fear and insecurity prevailed among victims and witnesses. It include

emotional problem such as lost of loved one, feeling of detached from family members

(daughter in law and children who left the joint family after death of bread winner and

made their life miserable) The victims often feel patient( Sattawala). In cases of

Bandwala, the family member complaint about harassment of their relatives by police for

putting pressure to compromise the matter cased mental suffering of victims and witness.

8.6.3 Social Consequences:

The victim’s families are living with stigma in social life. They were being ostracized,

alienated and treated as criminal, consequently withdrawn from social gathering and

festivals. The further harassment of family member by powerful person and institution

also found re-victimization of victims and witnesses and make them vulnerable in society

(in case of driverwala’s mother faced harassment by villagers who brought particular or

domestic things on credit from the shop of victims with intention to non-

payment(machiewala) at societal level and also visiting recovery agent (Amin) again and

again to her house for recovery of loan which she has paid as another level of institutional

level victimization . In another case, victims’ land was forcefully grabbed by villagers

consequently she left village due to social discrimination ( Driverwala). In some cases

migrations have taken place due to fear of authority and social discrimination or re-

victimization of victims and witnesses (Sattawala and Driverwala).

8.6.4 Economic Consequences:

In addition to fatigue and frustration of victims extended with the economic problem,

living below poverty line, burden of family, children( born posthumously), care of

disable child, their education and marriage, payment of debt, expenditure occurred during

attending inquiry and investigation of the case and overall the matter of livelihood and

survival. There is no compensatory scheme available for rehabilitation of the next of kin

and family members of the victims of custodial crimes. In a few cases, however, out of

245

court settlements have taken place between accused police personnel and victims

facilities. For which, no record is available. Only case related with the Schedule Caste

community has received Rs. 1.5 Lakh under the provision of the Schedule Castes and

Schedule Tribes (Prevention of Atrocities) Act, 1989 on the record (Bandwala).

8.6.5 Political Consequences:

Political problems encompasses fear of authority embodied in the mind of the victims and

keeping distance from government institution, lack of transparency in the system

especially institutional response to the victim found main concern for victim’s justice. On

the contrary, the victim’s life became pathetic and faced fake criminal charges due to non

–comprised matter of custodial abuse with authority. Few of the victims also found with

full of angers including neighborhood and community member having felling of anger on

bad governance and police highhandedness. They have also shown feeling of retaliation

against government.

8.6. 6 Developmental Consequences:

The substantial development cost of custodial violence cannot be ignored as the nation’s

resources are used to service direct and indirect costs of custodial violence at the expense

of nation building. Direct costs include expenditure on medical treatment (emergency

room care, hospitalizations, treatment, post-mortem examination) and Police services

(time spent on marking arrests, food services in the custody during detention period in

police custody). In case of custodial death which resulted public unrest and protest

against police and other public institutions, destroy or loot of public properties such as

public transport buses, blocked the railway track etc. Other hand, the transfer, suspension

and termination from police services of alleged police personnel may loose the human

resources in the police department, lost of image of police and State. Magistrate services

(public notification in daily newspaper about date, time and venue of Magisterial Inquiry,

time spent by Executive Magistrate in inquiry process such summon to the parties are

concerned to depose their statements, visiting home and institution, documentation of

inquiry report), Forensic Services( sending and receiving Viscera report from Forensic

Science Laboratories, Agra and Lucknow as case may be), Justice services ( prosecution

246

and court cases) as well as CID and NHRC Investigation process and interim relief to the

victims by District Magistrate relief fund, Chief Minister Discretionary fund and

compensation under the provision of SC/ST Act,1989 in case of member of Schedule

Caste and Schedule tribes victimized in police custody as well as recommendation of

compensation by NHRC in case of violation of human rights in police custody which is

ultimately paid by state government from social welfare/ developmental funds. Bank

services for deposing the amount of compensation for long term in the welfare of the

victims family or next-of-kin.

Indirect costs encompass the disruption to the social and economic progress and

productivity of the nation, state and district as a result of the disturbance in the family

unit and the support the family providers. Men in all over the world play an important

role in both family and labor force or human resource in different organizations. The role

as son, brother and father, breadwinners within family and labour force in governmental,

non-governmental and corporate sectors and their contributions to national socio-

economic development are hampered when custodial abuse related morbidity, stress or

mortality results.

8.7 Reaction of Family and Community:

In all the cases, victim’s families including spouses, siblings and parents have faced

challenging situations due to the occurrence of custodial crimes. They have registered

criminal cases against police personnel, medical examination of the bodies, attending

inquiry commissions, approached local courts and human rights bodies at district, state

and national levels.

The study found the dynamics of neighborhood and communities reactions towards

custodial crimes in general and victims of such crimes in particular, in some cases,

Communities people including neighborhood play a constructive role like in case of

Sikayatwala, they have attended the visitors, provided moral support to the victims’

family, solidarity in the protest movement against police highhandedness. In contrast,

Sattawala’s case, the neighbors had passed misleading information, having feeling of hate

247

& uncooperative attitude towards victims and keeping watched the movements of the

visitors to the victim’s family. The positive reaction of neighborhood towards victims of

custodial crimes was found in minority communities of Muslim (Sikayatwala and

Aropewala cases) and dalit ( Sattawala) –lower communities within Hindu religion. In

contrast, the uncooperative, hate and discrimination to victims revealed in the upper caste

people within Hindu religion (Sattawala, Machinewala and Driverwala cases).

The community members reacted to custodial violence in a collective form and protested

district and police administration for action against guilty police personnel. The

methodology adopted by the protestators included both non-violent and violent ways. The

non-violent ways of protest comprises “dharna” (demostration), “morcha” (rally),

“Navewaji” (slogan) and “bhuk hartal” (hunger strike). The violent way includes “Rasta

bandh” (blocked the public road) for disturb the peace of the city, “Tod Fod” (destroy

public property like blaze of public vehicles such as buses and train etc), loot (forcefully

taken away public property) for example, in case of driverwala, the members and leaders

of Bhatiya Kishan Union ( BKU) and other political parties joined hand together captured

Budhana Police Station and replaced the name of it and written BHK (Bhatiya Kishan

Union). While doing so the protesters have faced police violence and criminal

proceedings against them.

8.8 Preventing Custodial Crimes (Role of State Institutions)

The Rule of Law governs public institutions in the country including custodial

institutions in general and of police custody in particular. Therefore, the State initiated

the processes as per law. Section 176 of the Criminal Procedure Code empowers the

Magistrate (Executive) to hold inquests and investigate cause of death in police custody.

Section 174 of the Code of Criminal Procedure, 1973 makes it binding on any officer in

charge of a police station to investigate and report the case of any death in custody to the

nearest Executive Magistrate.

248

8.8.1 Attitude of Police

Police response in relation to the cases of custodial crimes was not positive. Initially, the

police have shown co-operative attitude but later they tried to avoid, not maintaining eye

contact while interacting, neglecting, telling other fellow about research study or

researcher, passing misleading or half information or false and sometimes totally denied

the information. Sometimes the police were shouting at researcher and sometimes

showing aggressive behavior and rude behaviors, asking the finding of research study and

also asking bribe for furnishing the detailed of the particular case or part of it.

So far as the commission of custodial crime in police custody in concerned, the local

police have a different perspective to look at the issue in reality. The police justified the

custody of person beyond 24 hours. Their justifications were based on ground reality.

First and foremost was that the duration of police custody is less time to investigate the

cases because of burden of work law and order, V.I, P. security, lack of existing police

manpower and Municipal & other department works and police intervention, etc.

The police also justified the issue of torture in police custody. They believe that the

torture is not routine activity but situational. It depends on the fact and circumstances also

viewed regarding use of torture due to discovery of fact and material, confessional

statements from suspects and accused, disciplining the wrongdoers in society, public

faith, society interest as well as structure problems like non-availability of scientific tools

(not even single lie detector is available in the district), lack of time, crime and communal

sensitive area, false accusation, public protest, low level of tolerance in society to getting

quick result, high ups unwritten orders and political interference.

The police personnel also felt that custodial crimes are not always necessary due to

torture in custody. There are other natural causes like weak physique, heart attack,

reaction of medicine, suicide and public beatings of accused/ suspects and handed over to

the police custody resulted death sooner or later. From police perspective the problem of

custodial crimes can be tackling if the following manner:

249

• Training based on custodial management curricula

• Use of forensic tools during investigation

• Follow up of NHRC and Supreme Court ruling through refresher course/ workshops

• Societal measures to abide rule of law

• Strengthening Institutional Mechanisms

• Infrastructural and manpower support

• Human rights of police personnel

• Enactment of New police Act and re-define the role of police

8.8.2 Police inquiry:

Police Inquiry of custodial commission of crime is always suspected by the victim’s

family members and community at large. It is because the people alleged that police was

covering up incidents as if nothing happened within the four wall of custody. First of all

the police hardly ever accept the incident of custodial crimes. That is the reason for non-

registration of the case of custodial crimes easily (Chitwala case which was not registered

by police despite ordered by high ups). If it is registered, local police are keeping all the

records in secret, avoiding outsiders being secretive about the information of cases,

providing misleading or false information and destroy the evidences too. In case of

Aropewala, the police were hurriedly buried his body in the evening time without post

mortem and submitted the final report in court mentioned “lack of evidence”. In this case,

the local police have not revealed even the date of post-mortem despite several efforts

made by researcher. Even the case is registered against police alleged custodial crime

under the provision of Indian Penal Code. The police know that how to manage victims

and witness to weaken the case at this stage for submission of final report to close it. 6

out of 9 cases were handed over to the police inquiry. In 3 cases, the local police have

submitted final report to the court due to non-availability of evidence of police

highhandedness to close the files (Machinewala, Davawala and Aropewala). Remaining

three cases are pending under investigation to the district Muzaffarnagar Police. This

final report of police inquiry works as a shield within department fellow for accused

police personnel.

250

8.8.3CB-CID Investigation:

Investigation by the Crime Branch of Criminal Investigation Department (CBCID) is

generally ordered by either court or the government under political and public pressures.

The present study found that 2 cases have been handed over to the CBCID, sector office,

Meerut, Uttar Pradesh. In both the cases charge sheets have been filed by CBCID against

local police personnel of custodial death and disappearances in police custody

(Jewellerywala, 2000 and Deriverwala, 2004 respectively).

8.8.4 Magisterial Inquiry:

When any person dies in police custody, the law requires a mandatory inquiry by the

Magistrate into the cause of death under Section-176 of Criminal Procedure Code, 1973.

The study reveals that each and every case of custodial crime magisterial inquiry is not

ordered. It is ordered only when public agitation took place. The present study found out

of 10 cases, 5 cases inquired by the Magistrates and in 4 cases the inquiry report found

guilty for custodial crimes. Such inquiries are normally conducted by Executive

Magistrates who are civil servants. Hence, the role of Executive Magistrate is significant.

During such inquiries, the Magistrate collect evidences submitted by various agencies

and individuals such as police records (First Information Report, Inquest Report, case

dairy and criminal history etc), post-mortem reports ( PME) furnished by the office of the

Chief Medical Officer ( CMO), Viscera Reports from office of the Senior Superintendent

of Police ( SSP) as well as statements deposed by the accused police personnel, victims

and witness.

8.8.5 Role of Court :

The institution of judiciary at the lover level e.g. District Court plays a vital role in justice

delivery system to the victims of crime in general and victims of custodial crimes in

particular. Six out of ten cases related with custodial commission of crime in police

custody have reached to the different courts in the judicial system of the District

Muzaffarnagar since 1999 to 2006(at the time of data collection in the field in the month

of October, 2006).

251

In two of the cases of custodial deaths, the police had submitted final reports to the

honorable Chief Judicial Magistrate Court, District Muzaffarnagar in 2005 and 2006

respectively. However, the victims were not aware of it. They were not even asked by

court to raise objections on final reports for further review and revision it to meet justice

to the grievance parties (victim’s families). The remaining three cases of custodial deaths

were pending in the Magisterial and Session courts. Machinewala case was pending in

the court of Chief Judicial Magistrate since 1999, it was only in 2007, the Court rejected

the final report of police inquiry and sent it to CBCID for re-investigation of the matter.

In case of driverwala which was investigated and charge sheeted by the CBCID in 2004,

the honorable Court could serve only summons to the accused party a number of times

however the compliance of the summons not done property by authorities concerned.

Consequently, all accused have not made their presence in the court of law for session

trial. The same situation can be seen in case of Jewellerywala. The matter was charge

sheeted by the Crime Branch Criminal Investigation Department in 2000. Nevertheless,

the court committed the matter for trail but the accused have not come in the court of law.

The advocate of Jewellerywala expressed his anguish over dealing o custodial abuse

cases by the district judiciary, “ Despite a number of times the summons from the court

have been sent to the accused but no compliance because of kith and kin within the

system of justice. And it is happening in a case of Sub-Inspector (accessed), if it would be

in case of DIG/IG, imagine what would happen? Further he said the poor litigants are

being revictimized by so called protector of legal justice delivery system. That is why the

people are loosing faith in the justice system in the country”.

8.8.6 Role of National Human Rights Commission (NHRC):

The National Human Rights Commission since its establishment in 1993 addressing the

issue of custodial crimes in police custody. The Commission had issued a number of

guidelines/ instructions includes report to the Commission about incident of custodial

deaths and rapes within 24 hrs of occurrence, video filming of post-mortem examination

and revision of autopsy forms as well as pre-arrest, arrest and post arrest guidelines for

police authority. However, the present study reveals insights about the working of NHRC

to combating custodial violence. First and foremost, each and every incident of custodial

deaths or alleged custodial deaths was not reported to the Commission (Cases of

252

Aropewala, Chitwala Sikayatwala, and Jewellerywala). Surprisingly, in case of

Sikayatwala who was victimized by the police because he approached to NHRC against

police highhandedness. Secondly, the model autopsy form of NHRC was not available to

the medical officer engaged in the post-mortem examination. Thirdly, the NHRC process

to entertain the complaints related with custodial abuses is time consuming. It takes

several years in disposal. The Cases of Machinewala, Dhavawala, Satawala, and

Driverwala are still pending for its consideration, although National Human Rights

Commission has recommended 1 lac rupees interim compensation to the victims of

custodial illegal detentions and false implication in 2004. The amount of interim

compensation was not given to the victims’ family by the Uttar Pradesh Government due

to legal technicality involved in this case. The questioned that arises here is why NHRC

has not moved to the Supreme Court or High Courts for implementation of its

recommendations to meet the justice to victims of custodial crimes?

8.8.7 Role of Medical Doctors:

The role of medical officer (doctor) is very crucial in ascertain the cause of death in

custody. The study found that 6 cases of custodial deaths medically examined by single

and panel of doctors and video graphed by police department. However, the medical

department had not followed the guidelines of Apex court in D.K. Basu v. State of West

Bengal (AIR 1997 SCC 610) which is mandatory requirement for the panel of doctors in

cases relating to custodial deaths in police custody. Surprisingly, the medical reports of

custodial deaths have not mentioned any sign or mark of pre-mortal injury despite the

public including media, family members and eye witnesses alleged police torture in

custody. Further, torture as a caused of death is not investigated, which was revealed and

documented by CBI/CID in their investigations. The study reveals that the medical

officer engaged in post-mortem examination of the body of deceased were unaware about

the National Human Rights Commission’s guidelines/instructions related with role of

doctors, model forms of autopsy and videography to combat torture in police custody. In

two cases, the medial doctors were found influenced by local police consequently re-

postmortem of the bodies were conducted.

253

8.9 Monitoring Custodial Crimes (Responses of Civil Society)

The phenomena of custodial crimes occurred within the public domain of Institution of

police. All most in all the case studies, the civil society groups including family,

neighborhood, local community members, villagers, media, Non- political organizations

and NGOs acknowledged that it and their active involvement in expressiong custodial

violence in police custody has shown impact on police & government to curb custodial

violence in police custody.

8.9.1 Role of Media

The study reveals mixed experiences about the role of media in addressing issue of

custodial crimes (including print and electronic). In the case of Jewellerywala, family

members of deceased perceived that the local media who took up the case of

disappearance of the corpse of Jewellerywala positively and showed a lot of interest

initially. But later withdrew its focus from the case and started publicity of the same news

and views. Actually the media was perceived for sensationalizing it. In contrast, in case

of Aropewala, this was solely effort made by media who took up the case single handedly

and came out with the evidences of the death as torture. The media had also maintained

all the records of the case such as day and date of post-mortem nevertheless in the

meantime the victim’s family compromised the matter with police and case lost the grip.

On this the media persons displayed anger and withdrew from the case.

8.9.2Non-Political organization

The non-political organization like Bhartiya Kishan Union (BKU) formed for welfare of

farmers in the district around 20 year ago. The workers and leaders of BHK have been

actively involved in the protest of police brutality in the district (Machinewala, Sattawala

and driverwala). They have also been facing institutional violence and criminal charged

leveled by police against them. In doing so, the growth of non-political organization has

been observed to reach out to the masses of the common people for social cause.

However, it was found that these organizations were not more active in the cases where

the victims were minority and dalit communities (Aropewala, Sikayatwala and

Bandwala).

254

8.9.3 NGOs

There is involvement of NGOs ( Non-Government Organizations) in carrying out certain

activities in the district. The NGOs are working in the field of right to legal aid, right to

education, right to information, rights to women and children as well as prisoner rights

and human rights. Out of these, few organizations came forward for helping hands in fact

finding, social investigation, documentation and home and institutional visits with

researcher. By one way or other they have shown solidarity for victims of custodial

crimes too.

8.9.4 Status of Cases

Six cases have reached the court. Amongst them 3 cases the police have submitted final

report to the court in lack of evidences. Three cases are still pending in the court for

appearance of accused, adduced of evidences and deposed of statements by witnesses.

The only case disposed by judiciary and punished the victims of illegal detention and

false implication in NDPS Act and surprisingly accused got Scot free despite the case

investigated by NHRC team. Other three cases are at the investigation level, out of 2

cases of custodial deaths initially investigated by the CBCID and later handed over to the

local police without any reason. One case related with custodial torture and death during

hospitalization has not even registered by the police authority despite the order for

registration of a criminal case against alleged police officials by government.

8.10 Discussion

The results so fare have been presented in the form of narratives and case analysis. Since

the data were in the form of narratives, they were analyzed thematically and the present

discussion takes the analysis to another level by deriving concepts from the broad themes,

these concepts have been labeled in order to facilitate comparisons and they form the

scientific contribution of this research into the knowledge base of crustodial crimes in

India. This chapter synthesizes each construct into theoretical categories of custodial

crimes, causes, consequences and preventive measures.

255

This chapter attempts to synthesize the constructs to arrive upon general categories

induced upon to build a theory by proposing and discovering relations between the

concepts that emerged out of each case to form a composite picture of custodial crime in

the context of District Muzaffarnagar in the Uttar Pradesh State. Synthesizing the

constructs into categories serves the purpose of understanding the trends and allowing the

individuals cases to merge into each other to build a broader theoretical picture. The

discussion of results is broadly structured around the objectives of the study.

8.11 Construct of Custodial Crimes

The findings from this exploratory study give insights into occurrence of custodial crimes

in police custody. The findings also serve purpose to identify several key areas of policy

formulation and intervention programmes can be meet the needs of persons in custody in

general and curb the malady of custodial crimes in police custody from the system in

particular. A noteworthy finding of this research was that the institution of police custody

not only serves the preventive and investigative functions but also crisis response as per

the need of the society. The police custody was experienced by suspects, accused,

witness and complaints as well as person in crisis situation (injured person). This is the

generally the reasons behind police custody.

It is homogenous study where all individuals are male persons; no victim of female was

noted or taken up. Rarity of crimes against women in police custody got registered. If it is

registered then end up with compromised between parties due to so many factors behind

it like stigma of women in society, poverty and fear of authority. Therefore the rape,

molestation and sexual torture are most unreported crimes in custody. The significant

finding of the present study reveals different forms of custodial crimes (illegal custody

and detention, custodial torture, custodial deaths and custodial disappearances). Out of 10

cases, 1 case of Illegal detention and false implication, 1 case of torture and 6 cases of

deaths and 2 cases of disappeared from police custody. It is noteworthy to mention that

the studies undertaken largely have reported either on custodial deaths (Amnesty

International 1992; Singhal 1993; Sen 1994; Krishnamurthy 1997; Goyal 2005, NCRB

2007), custodial rape (PUCL 1994), Torture (Cehat 1998) and disappearances (Amnesty

International 2003) and (Human Rights Watch 2006).

256

8.12 Construct of Causes of Custodial Crimes

The present study has revealed a solid body of evidence of torture caused custodial

crimes in police custody. Torture in police custody has been perceived a serious problem

for individuals, next-of-kin or victim’s families and communities at large. Despite

Constitutional and legal provisions safeguarding life and liberty of an individual against

torture (as well as India is a party of International human rights declarations, covenants

and conventions including UN Convention against Torture and Cruel Inhuman Degrading

Treatment or Punishment, 1984 and recently singed International Convention on

Protection of all person against enforced Disappearances, 2007) torture continues to be a

continues serious problem in India.

Contrary to other studies which stated that natural causes of death are predominate in

police custody, the present study points out unnatural cause i.e. violence or torture as

causes of deaths in police custody. Despite media vigilance and setting up of the National

and State Human Rights Commissions, deaths in police custody are increasing. It is

important to note that most of the detainees in police custody were young people & then

death in police custody is a serious threat to the society. To curb the custodial violence

civil society organizations should be vigilant.

Out of 6 cases, 3 cases of the deaths occurred due to poisoning in custody and death

occurred during hospitalization and in all these three cases, the police personnel were

found guilty of carelessness of handling suspects/ accused in police custody. Later the

viscera report confirmed Aluminum Phosphate (Machinewala case) and Potecium

Phasphite (Sattawaala and Bandwala cases). It indicates that torture methods such as

physical, psychological and chemical substances are used by police. The use of torture by

police to extracting confession is found one strategy. The pattern that emerged from the

study is that police torture is link with and power structure & domination over powerless

in society.

8.13 Construct of Consequences of Custodial Crimes

It is perhaps the first study that found the impact on custodial crimes on next of kin,

victim’s families (wife and children, relatives, siblings and parents) and communities on

257

one hand and accused police personnel on other hand. They victim’s families and

communities have manifested vulnerability, loss, ill health (distress, anxiety, nightmare,

stigma fear, and insecurity), financial burden, re-victimization at individual, society and

institutional levels. Besides, the victims families and communities have also shown their

aggressive behavior, feeling of retaliation against government as well as Institution. The

accused police personnel felt stigma in society, loss of loss and financial crisis etc.

The individual victims of custodial crimes of the present study reflected in the finding are

poor irrespective of class, caste and religion. A review of the earlier studies reveals

predominance of the poor, marginalized; weaker sections of people are victimized in

police custody. The overall picture indicates a kind of bias in process of criminalization,

identifying the suspect, taken into the custody and treatment in police custody by law

enforcement agency or police.

The findings are consistent with the past research studies suggesting a strong link

between poor, downtrown and ignorant with little or no political or financial power and

victimization in police custody. As the earlier research has found demographic

characteristic of individual victims are youth, low education, low economic status and

engaged in agricultural labour , factory workers, driver, painter, singer, bakery worker (

mostly in unorganized sector) except two cases ( one businessmen and one hotel owner).

The out of ten, seven cases no criminal background. It indicates that they have

experienced first time in police custody. It shows that they are not criminal by nature by

way of suspicions or accusation kept in police custody. It can draw a link between youth,

suspicion and risk of arrest and victimization in police custody.

258

8.14 Construct of Preventive Measures

Our finding similar to other research that magisterial inquiry to find out cause of death to

prevent the custodial abuse under the provision of law. However, not in all cases of

custodial deaths followed by Magisterial inquiry as and when public out cry or mass

protest taken place the inquiry was constituted. The findings reveal that in two case of

Muslim community from same village who died in police custody during conducted

arrest and raid. No inquiry was instituted. It indicates that Muslim community people

even those who are poor are more vulnerable and faced discrimination even after deaths.

All the 6 cases the inquest verdict found the cause of death could not established during

the post –mortem of the bodies despite the family members, independent eye witnesses

and community people preserved police physical beating and deprivations. In few cases,

the family members and community people demanded re-post-mortem of the body due to

doctors were influenced by the authority. Even the study found that the medical officers

were not aware about the latest development of mechanisms to prevent custodial violence

through participation of medical professional as one of the stakeholders.

The findings of the present study consonance with other studies regarding trend to

punishing of guilty police officers for custodial crimes, no police personnel was

convicted by the lower judiciary since 1995 to 2006 (6 cases of custodial deaths reached

to the different courts of the Magistrate and Sessions’ judges). In some cases, the local

police submitted the final report in the absence of evidences in the court of law. The

judiciary has not even asked the victims family to review and revision of the final report.

The poor victims are even aware about it due to their ignorance of rights and poverty.

Despite the CBID submitted charge sheets in two cases of custodial deaths and

disappearances in police custody and found guilty of police personnel, in four cases the

Magisterial inquiry found the guilty of police personnel and recommended for further

actions against them however the lower judiciary could not be started even trial of such

cases because the sanctions for prosecutions were granted by government. Few police

officers were transferred within the district Muzaffarnagar or different districts of the

State of Uttar Pradesh as a part of punishment and later reinstated and still in police

service. While an attention to the victims’ family is devastating affected their

individuals, family and social life due to not only delay in justice but also justice denied.

259

There is no specific system or scheme for arranging compensatory and rehabilitation of

the victims of custodial crimes available. In few cases, however the out of court

settlement taken place between the victims and witnesses as well as police personnel.

Thus, the present findings also have some relevance to current discussion on

rehabilitation of victims of custodial crimes including physical, psychological,

economical and social aspects of integrations to next of kin or victims into the main

stream of the society.