Report No. 273

5.26 In Rama Murthy v. State of Karnataka, 100 the Supreme Court identified various issues facing prisons which required reforms and it included torture and ill-treatment.

5.27 The Apex Court in the case of Sube Singh v. State of Haryana 101 has taken note of custodial violence and third degree methods used by police during interrogation and has discussed in detail the reasons behind such practice and has also suggested preventive measures as to how such violence can be tackled. The Court observed:

"The expectation of quick results in high-profile or heinous crimes builds enormous pressure on the police to somehow 'catch' the 'offender'. The need to have quick results tempts them to resort to third degree methods. They also tend to arrest "someone" in a hurry on the basis of incomplete investigation, just to ease the pressure. The three wings of the Government should encourage, insist and ensure thorough scientific investigation under proper legal procedures, followed by prompt and efficient prosecution."

5.28 The Court also issued certain directions for providing training reorientation courses for the change of mindset and the attitude of the police personnel, providing for supervision by superiors to prevent custodial violence, strict adherence to the directions issued by the court earlier in the case of D.K. Basu (supra) and for investigation by independent agencies on the complaints for custodial violence by police personnel.

5.29 In Raghubir Singh v. State of Haryana 102 , where the violence employed by the police to extract a confession resulted in death of a person suspected of theft, the court observed that "We are deeply disturbed by the diabolical recurrence of police torture resulting in terrible scare in the minds of common citizens that their lives and liberty are under a new peril when the guardians of law gore human rights to death." The Court further observed that vulnerability of human rights assumes a traumatic, torturous poignancy, the violent violence is perpetrated by the police arm of the State whose function is to protect the citizen and not to commit gruesome offences against them.

5.30 In State of U.P. v. Ram Sagar Yadav,103 the Supreme Court dealt with a case where the policemen murdered one Brijlal who not only refused to pay bribe of Rs.100 in a trivial matter of cattle trespass but also complained about demand of bribe to senior police officers. The Court observed that "Police officers alone and none else can give evidence as regards the circumstances in which a person in their custody comes to receive injuries while in their custody.

The result is that persons on whom atrocities are perpetrated by the police in the sanctum sanctorum of the police station are left without any evidence to prove who the offenders are." The Court recommended that the "law as to the burden of proof in such cases may be re-examined by the legislature so that handmaids of law and order do not use their authority and opportunities for oppressing the innocent citizens who look to them for protection."

5.31 The Supreme Court in the case of Prakash Kadam v. Ramprasad Vishwanath Gupta 104 , expressed its displeasure on fake encounters. Some police officers and staff were engaged by private persons to kill their opponent. If the police personnel act as contract killers, there could be very strong apprehension in the mind of the witnesses about their own safety that the police may kill the important witnesses or their relatives or give threats to them at the time of trial of the case to save themselves. The protectors have become the predators. As the Bible says "If the salt has lost its savour, wherewith shall it be salted?", or as it was said in ancient Rome, "Who will guard the Praetorian guards?"

The Court observed that in cases where a fake encounter is proved against policemen in a trial, they must be given death sentence, treating it as the rarest of rare cases. The policemen were warned that they will not be excused for committing murder in the name of 'encounter' on the pretext that they were carrying out the orders of their superior officers or politicians, however high. In the Nuremburg trials the Nazi war criminals took the plea that 'orders are orders', nevertheless they were hanged. If a policeman is given an illegal order by any superior to do a fake 'encounter', it is his duty to refuse to carry out such illegal order, otherwise he will be charged for murder, and if found guilty sentenced to death.

5.32 In Mehboob Batcha v. State,105 respondents policemen wrongfully confined one Nandagopal in police custody on suspicion of theft from 30.5.1992 till 2.6.1992 and beat him to death with lathis, and also gang raped his wife Padmini in a barbaric manner. The accused also confined several other persons (who were witnesses) and beat them in the police station with lathis. The graphic description of the barbaric conduct of the accused in this case shocked the conscience of the Court and it observed that Policemen must learn how to behave as public servants in a democratic country, and not as oppressors of the people.

5.33 In The State of Andhra Pradesh v. N. Venugopal,106 the Supreme Court held that there is no provision that authorise the police officers to torture the suspects during investigation/Trial or conviction. The Court held: 'The Court has to remember in this connection that an act is not "under" a provision of law merely because the point of time at which it is done coincides with the point of time when some act in the exercise of the powers granted by the provision or in performance of the duty imposed by it.

To be able to say that an act is done "under" a provision of law, one must discover the existence of a reasonable relationship between the provisions and the act. In the absence of such a relation the act cannot be said to be done "under" the particular provision of law. The High Court fell into the error of thinking that whatever a police officer does to a person suspected of a crime at a time when the officer is engaged in investigating that crime should be held to be done in the discharge of his official duty to investigate and as such under the provisions of the law that imposed this duty on him. This view is wholly unwarranted in law.'

5.34 In Haricharan v. State of M.P,107 Supreme Court reiterated that "life or personal liberty in Article 21 includes right to live with human dignity. Therefore, it also includes within itself guarantee against the torture and assault by the States or its functionaries." The State mechanism must not be used for inflicting torture on people.

5.35 In Nandini Satpathy v. P.L Dani & Anr.108, the Court held that not only physical threats or violence but psychological torture, atmospheric pressure, environmental coercion, tiring interrogation by police are violation of law.

5.36 In Khatri & Ors v. State of Bihar (Bhagalpur Blinding case)109, which was an example of cruel and inhuman treatment to the prisoners which are insulting the spirit of Constitution and human values as well as Article 21. Supreme Court in this case dealt with the blinding of undertrial prisoners by the police by piercing their eyeballs with needle and pouring acid in them. This case shows the pattern of torture and its implicit endorsement by the State.

5.37 While commenting upon the aforesaid case, it has been observed that:

"Formidable problem in an alleged case of police torture is to establish the guilt of the perpetrators of violence."110 This could be due to the situation where offenders are hand-in-glove with the local police and the absence of neutral witness.

5.38 In Bhagwan Singh & Anr. v. State Of Punjab111 a case of death in police custody the Supreme Court observed that the interrogation does not mean inflicting injuries.

"Torturing a person and using third degree methods are of medieval nature and they are barbaric and contrary to law. The police would be accomplishing behind their closed doors precisely what the demands of our legal order forbid."

5.39 In Dagdu & Ors. v. State of Maharashtra112, the Supreme Court observed:

"If the custodians of law themselves indulge in committing crimes then no member of the society is safe and secure. If police officers who have to provide security and protection to the citizens indulge in such methods they are creating a sense of insecurity in the minds of the citizens. It is more heinous than a game-keeper becoming a poacher."

5.40 In Ram Lila Maidan Incident v. Home Secy, Union of India,113 the Supreme Court held: "Article 355 of the Constitution provides that the Government of every State would act in accordance with the provisions of the Constitution. The primary task of the State is to provide security to all citizens without violating human dignity. Powers conferred upon the statutory authorities have to be, perforce, admitted. Nonetheless, the very essence of constitutionalist is also that no organ of the State may arrogate to itself powers beyond what is specified in the Constitution. Therefore, every act which offends or impairs human dignity tantamounts to deprivation pro tanto of his right to live and the State action must be in accordance with reasonable, fair and just procedure established by law which stands the test of other fundamental rights."

5.41 In CBI v. Kishore Singh114 , a person was arrested without any compliant by constable Kishore Singh suspecting illicit relationship with one Smt. Gaj Kanwar, his relative. He was not only physically assaulted but his penis was chopped off with a sharp edged weapon. The Supreme Court while dealing with the appeal of the CBI against the order of reduction of sentence by the High Court and against acquittal of one accused observed that in a police station, there will be no witness except the policemen and the victim, since the police station is not a public place. The Court further observed: "In our opinion, the policemen who commit criminal acts deserve harsher punishment than other persons who commit such acts, because it is the duty of the policeman to protect the people and not break the law themselves. If the protector becomes the predator society will cease to exist"

5.42 In S. Nambi Narayanan v. Siby Mathews & Ors.115, the Supreme Court entertained a case in which a scientist of high repute had been taken into police custody without any justifying cause. The Court observed that non-interference in such a case would give the police a long rope to take anyone into custody without any reason. Though the Investigating Officer has reached the age of superannuation, he was directed to be prosecuted. Similar view was reiterated for inaction by the investigating agency in Murad Abdul Mulani v. Salma Babu Shaikh & Ors.116

5.43 In Sheela Barse v. State of Maharashtra117, the Supreme Court laid down guidelines regarding arrest in general, and arrest of women in particular. The Court directed that four or five police lock-up should be reserved for female suspects and they should be kept away from the male suspects and be guarded by female constables; interrogation of females should be carried out only in the presence of female police officers/constables; the District Judge would make surprise visits to police lock ups periodically with a view to providing the arrested persons an opportunity to air their grievances and ascertaining what are the conditions in the police lock ups and whether the requisite facilities are being provided and the provisions of law are being observed and the directions given by us are being carried out and the magistrate before whom an arrested person is produced shall enquire from the arrested person whether he has any complaint of torture or mal-treatment in police custody and inform him that he has right under Section 54 of the CrPC 1973 to be medically examined.

5.44 Therefore, it could be seen from the aforesaid judicial pronouncements that torture by a public servant or its implicit endorsement by the State have always been condemned by the Courts. Torture has been a contentious issue having a direct bearing on the right to life and liberty of an individual. The Commission is of the opinion that such heinous acts must be curbed through strong legislation providing stringent punishment, which will act as a deterrent.

5.45 Further, the Commission is of the view that there has to be some effective mechanism to protect the interests of the victims of torture, the complainants and the witnesses against ill-treatment, threats or physical and mental violence.

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