IN THE SUPREME COURT OF INDIA

ORIGINAL CRIMINAL JURISDICTION

'

cRL. M.P.

NO.
lN
,.

OF 2013

wRrT PETIT|ON (CRL.) NO. 539 OF 1986

lN THE MATTER OF: D.K, Ba'su

'
State of West Bengal & Ors.

VERSUS

APPLICATION FOR DIRECTIONS ON BEHALF OF AMICUS CURIAE

ADVOCATE FOR AMICUS CURIAE: PRANAB KUMAR MULLICK

IN THE SUPREME COURT OF INDIA

ORIGINAL CRIMINAL JURISDICTION CRL. M.P, NO.

IN

oF 2013

wRtT pETtTtoN (cRL.) NO. 539 OF 1986

,,
IN THE MATTER OF:

D.K,

Basu
,
VERSUS
...

..... petitioner

State of West Bengal a Orr.

,.. Respondents

APPLICATION FOR DIRECTIONS ON BEHALF OF AMICUS CURIAE

To

The Hon'ble Chief Justice of India and His Companion Justices of the
Supreme Court of India at New Delhi.

The humble petition of the

I

Petitioner abovenamed. 'MOST

".

RESPECTFU LLY SHEWETH

1'

That the'presenl Writ Petition was instituted on 20.08.19g6 before this . Hon'ble Court raising importapt issues relating to custodial
violence and custodial death. This Hon'ble Court has passed several judgments and orders in the present Writ Petition, which are set out as under:

. .

[(1997) 1 SCC 416] dated 19. j2.jgg6

[(1e97) 6 $CC 642] dated 01,0s.1997 [(19e8) e

.
. . . . .

Scc +Jz] u"ted 07, 11.1ssz

[(1998) 6 SCC 380] dated 01.0S.1998

l(2002) 10 SCC 7411dated 1S.OZ.2OO2 [(2003) 11 SCC 723]dated 19.

1O.ZOO1

[(2003) 11 ,SCC 725] dated 12.10.2001 [(2003) 12 SCC 174] dated 07.05.2003

tfully submits that despite the ,"r?^r"O judgments and directions passed by this Hon'bre cour:t in the present Writ Petition, laying down various guidelines for prevention

of custodial violence and custodial deaths, the implementation by the variour'Strt"g appears to be extremely lax resulting in a steady
stream of cases of gross custodial violence.

3.

A chart prepared by National Human Rights commission (NHRC)

showing the Total number of cases filed involving deaths in Judicial custody (irltirpation + complaints), Total number of cases filed

involving deaths in Police Custody (intimation + complaints) and Total number of cases filed involving Custodial Torture (police) for
the period lrom 2007-09 to, 2012_13 is as under:

Year

Cases filed Cases r.filed Cases filed Cases filed re. Death in re. Death in re. Death in re. Death in Judicial Judicial Police Police Custody Custody
pla

Cases

Total
re

filed
Torture

Gustodia

Custody ints) (lntimation)

188

Custody

(lntimation) (Com
20072008 20081,598

(Complaints) (Police)
62

1,799

47

445

2,530

51

142

68

573

2,432

2009
20091,473
B5

124

134

615

2,431

2010 2010201
1

1,426

158

146

165

855

2,750

20112012 2012 IU IJ

1,302

246

12E

306

678

2,660

1,557

285

143

198

366

2,549

Tota

9,144

872

871

933

3,532

15,352

4.

3
As regards rape in police and judicial custody, on 9 March 2010, the then Minster of State in the Ministry of Home Affairs,
Government of

India stated in irr'e Lok sabha that the Nationar Human Rights commission registered 39 cases of rape from judicial and police custody from 20o6 to 2010 up to 2g February 2010. These included 9 cases, incrudihg 2 in judiciar custody and 7 in porice
custody, in

2006-2007:17 cases, including 2 in judiciail custody and 15 in potice custody, in 2007-2008; 7 cases, including 2 in judicial custody and 5 in police custody, in 200g-2009; and 6 cases, including 1 in judicial custody and 5 in police custody in 2oog-2010 up to 2g February
2010"

5'

lt is also pertinent to note that unlike custodial deaths, the police are not mandatorily required to report cases of torture which

do not

result in deaths, to the NHRC. Hence the number of cases of police torture as referred to in the chart, are onry a fraction.

Thg figures in the aforesaid chart and Minister,s statement do not include the cases handled by the'' various state Human
Rights

commissions (sHRCs). The main reason why torture continues to be practiced on such a wide scare throughout India is that the porice feel themselves to be immune, they are confident enough that they will not be he/d accountabre, even if they kiil the victim & even if the
truth is
7

revealed.

In fact, a few recent incidents of custodial violence/deaths widely reporled in the media, even compelled the Hon,ble supreme court
to take suo motu cognizance in the nratters.

The Ta/n Taran case provides a case in point. on 03,03 .2013, a woman harassed by taxi drivers approached police in Tarn Taran in Punjab only to be assault'ed mercilessly in public, her brother

picked up by Police and father beaten up. This Hon'ble court initiated a suo motu writ petition (civil) No. 13g of 2013 entifled tn
Re: "Punjab cops beatrup woman in public,, and ,,police lathi_charge

protesting contractual teachers

in patna" published in

various

newspapers or the country datecl 0s.03,2013 and 06.03.2013. lt is pertinent to note that (his Hon'ble Court rejected the Magisterial enqutry report on the said incident.

This Hon'bre court is arso dearingl with another case,

viz.

lndian Citizens killed by the Manipur Police, and other security forces while they were in custody or in stage-managed encounters or in ways broadly termed as "extra judicial erxecutions'. This Hon,ble

court has initiated a suo.motu writ petition (criminar) No. 2012 entitled rn Re: "Extra Judiciar Execution Victim

12g of

Famiries

Association (EEVFA[{) and Another Vs. Union of rndia & Another,,.

8.

The extent of the probrem is highrighted by the fact that

mahner:

in

i'

Ghaziabad District (u p,) arone, six custodiar deaths were reported in four months from Aprir to Jury, za13 in the folrowing

on

02.04.2013,

a man died in Dasna jair under

mysterious

circumstances;

ii' iii'

on 19.04.2013, a 22 year ord youth <iied in porice custody in

Modinagar; On 28.04.2013, a prime accused in the double murder case of a crsF constabre and his wife, ailegedry hanged himself at

iv. on 15.00.2013, v.

torture; t , ,,

Indirapuram porice station, the co-;rccused aileged porice a 40 year old man dit-'d in Kavi Nagar porice
suicide

station, his family claims that he was tortured; on 21.07.2p13, a 55 year ord rnan ailegedry committed
in Dasna jail; one policeman was suspernded;

vi. on 27.07.2013, the accused in an acid throwing

case

allegedly committed suicide at the VUay Nagar police station. Five policemen have been suspended.
[source: Times of India, New Derhi dated 2g.o'7.2013]

It is submitted that custodial Violence is a trait against human dignity

and human rights that springs out of a pe^/erse desire to cause suffering when there is no possibility of any retaliation. lt is a
senseress exhibition of superiority and physical power over the one

5
who is overpoi,,uered. The poor, the deprived classes, women & political activists are the worst victims of police brutality. Torture in custody flouts the basic rights of the citi,zens and is an affront to
human dignity.

10'

In the circumstances as aforesaid, it is submitted that having regard to the experience regarding implementation of the directions earlier given by this Hon'ble Court, time has corTre for issuance of certain

further directions as set out in the succee<ling paragraphs, in order to eradicate custodial viorence and custodiarr deaths:
'\

':gA.

MANDATORY DTRECTTON FOR SETTTNG Up oF STATE HUMAN RIGHTS COMM.ISSIONS BY ALL STATES:

1-,..'r t'affi\lthough

the Protection of Human Rights Act was passed in 1g93 and 20 years have passed till date, the following States have
eethi_,
\"-.r'
I

not

i.

constituted state Human Rights commissions (sHRCs):

ii. Arunachal pradesh iii. Mizoram iv. Meghalaya v. Tripura; and vi, Nagaland.

10A'2In respect of Delhi, it is submitted that the'second highest number of human rights violation cases reported to l',lational Human Rights Commission (NHRC) comes irom Delhi. Ther NHRC curtain Raiser published on its 20th Founodtion Day dated october 12,2012 states that during 1't october 2011 to 3oth september, 2o1za totar number of 94,985 fresh cases were registered in the rlommission. Maximum (46,187) cases were registered from Uttar Prardesh followed by Delhi (7988) and Haryana (6921). Even though NHRC is tocated in Dethi,l it is necessary that Delhi should have its own {]HRC. J

6
'10A'3Mizoram,
Meghalaya, Tripura and Nagaland are all disturbed States with problems of insurgency, foreign immigration, tribal warfare and ethnic violence. Custodial violence and custodial deaths are rampant

in each of these States. In such disturbecl regions, it is all the more necessary to have proper authority to kegp check on and redress, human rights violatipns and therefore the need to constitute sHRCs in these States. Nagaland has in iits affidavit affirmed on 1 5.04.2013, filed in the present case, has stated that in the absence of sHRC, it has constituted a State Level Human Rights Committee and
District

Level Human Rights Committee to look into complaints of violation of human rights in respective iurisdictions.
1QA'4

There are also several custodlial death cases reported from

Arunachal Pradesh. That apart, Arunachal lrradesh is a border State and often militants from Assam seek refuger in Arunachal pradesh.
lt

is necessary therefore to have a fuil fredl3ed sHRc in Arunachal

Pradesh.

10A'5ln the circumstances as aforesaid, it is necr:ssary that the aforesaid states be called upon for explanation as to why sHRCs have not been constituted in their respective States and direct them to constitute the same within a specified time frame. 1OB. DIRECTION REGARDING COMPLETION rOF APPOTNTMENT TO VACANT POSTS OF CHAIRPERSONS AND MEMBERS OF
SHRCS:

108

In several States, althouglr SHRC has been constituted, the post of Chairperson is vacant. These States are:

I
I

i. Jammu & Kashmir: ii, Manipur; iii. Karnataka; iv, Rajasthan; v. Himachal pradesh; vi. ' Madhya pradesh; and

vl.

Tamil Nadu.

7
108.2lt is pertinent to mention that in Manipur and Himachal pradesh, the SHRC is not functioning since the post of Chairperson as well as sole member is vacant.
rn Manipur, the Armed Forces speciar powers Act (AFSpA), 1958 is in operation. The Army and parar miritary forces have the power to arrest, search and seize and fire upon. or otherwise use force' even to the extent of causing death. 'rhis Hon,ble court in writ Petition (criminal) No' 1 29 of 2012 is exarnining the issues relating to 'extra judiciar kiilings by Manipir poricer and security and para_ military forces in Manipur. The Amtcus has ialso come across articles relating to custodial deaths of juveniles in Manipur, with minors being described as adults in police records. In sur:h a state if all the posts of sHRC remain vacant, there wourd be no check on abuse of human rightl of citizens in the.State.

',,. r

10B.3ln Jammu & Kashmir arso, the post of chairperson and one member is vacant and only one member is functioning. lt is submitted that the state of Jammu & Kashmir is beset with problems of terrorism. lt is a state where the Armed Forces speciar powe,rs Act (AFSPA),

in operation and there are regurar ailegations of porice and army

brutalities' The vacancy in the office of Chainman of SHRC and one menrber in such a State is inexcusable.

1g5B is

108.4In Jharkhand, onry thB chairperson is functircning while the post of the sole member remains vacant. ln Karnataka, two members are functioning while the post of Chairperson ancJ one member remains
vacant.

108'5In respect of sikkim sHRc, the website states that ,,the chairperson is functioning from his residencer ?fld ilre secretary
Commission is functioning from his office.,,
108.6 Maharashtra

to

the

has the highest number of custodiar deaths in the country as per NHRC estimates. \,et, tirr recenfly, the posts
t,

of

chairperson as well as both other members in Maharashtra SHRC were vacant, reduqng the sHRC to a non-functionar body. rt is onry recently that the chairperson and one mernber have been appointed while the post of one member remains vacant.

108.7lt is also pertinent to note that many of the e mail addresses of the SHRCs in the NHRC website are incorrec;t, It is necessary that the
websites be regularly and correcily updated. 108.8In these circumstances, the foilowing directions are sought for:

,/

i,

tl

ill

Direction to the state Governments that the vacant posts of chairperson and members i' ail the riHRCs be fiiled up within one month from date of order passed by this Hon,bre court; Direction ,1o 1t'r" state Governments that chairperson of a SHRC should be appointed one month prior to retirement of the incumbent and in any case the post of chairperson of sHRc shguld not remain vacant for more than one month. Direction io the NHRC and the sHRCs to dispray correct and uptodate information on their websites.

109 3The SHRC websites do not dispray whether the aforesaid Human Rights courts have been constituted or not. rt is therefore prayed that direction shourd be issued that the sHRC websites should properry dispray constitution of the Human Rights courts in the respective States.

i\---'

too;

INSTALLATIoN oF ccrv CAMERAS tN ALL poLrcE srATroNS -*''-"-*---= & PRISONS AND ,MEDIA AUDIT,:
-,-**\* -. ' --\u..-

10D'

I I /

and prisons throughout the country. In the first phase it is suggested that ,,1 ccTV cameras ue installed in all Police stations and prisons

lt is necessary to install ccrv cameras in all police stations

semi-urban, remote and rural locations and

in

locations' In the second phase, the coverage - -' v' rvvrv be g/ vv extended to,/i -9 - should i' all porice ^r-r: stations and prisons ail over the country. The phasewis? implementation shourd be compreted within ! one
t.

in

5oo/o

of urban ,

year.

10D'2The

cameras should cover every angle of the police station, including but not limited to,'the entrance to the police station, all places where there is interaction between the police and public and in all lockups and detention places, by whatsoever names called and interrogation rooms' GCTV cameras need also to be installed in the prisons, both in the cells as well as in the offices, interrogation rooms and meeting places.

ccrV

10D'3The said CCTV cameras must be kept in working conctition. The feed recordings should be directly sent to an intermediate
control

centre under the contror of the sHRc, The sHRC shourd designate persons to regularly scrutinize the recordings on surprise sample basis, to ensure that no custodial viorence is taking place.
Further,

the recordings must be preserved for at least one year.

10D'4lt is suggested that NGos and Associations of persons (including persons from the inedia) should be registered in each
district, who

would be entitled to conduct random and surprise inspections of all

to
Police Stations and Prisons in their specified area, such bodies should be empowered to visit each and every place in the police station or prison, including interrogation rooms, lock ups and ce1s, speak to the inmates and examine the ccTV footages to
and

any custodial violence is taking place. The said NGOs

ascertain if

Associations of Persons would be entiiled to report direcily to the sHRCs and arso send copies to Senior porice and prison authorities' lt is submitteci that such 'Media Audit' would be
crucial

to make Police ,ltations and Prisons 'violence free' areas. However, precautions need'to be taken to ensure that investigation is not
hampered or inter^fered with, thereby.

1OE. EXTENSION O'I NPPr-ICABILITY OF D.K. BASU GUIDELINES FROM THE TIME ANY PERSON WHO HAS BEEN SUMMONED BY POLICE, ATTENDS THE POLICE STATION: 10E'1The 11 guidelines set out by this Hon'ble court in the present case and reported in (1997) 1 scc 416, appry onry to cases of arrests made under Sections 41 (when police may arrest without warrant) and 74 (warrant directed to police officer) of the code of criminal Procedure, 1973 (as amended up to date). rt does
not appry to those who are summoned but not formally arrested. Experience shows that

o"tsons who have been summoned by porice but not formaily

arrested, are regurarly subjected to torture during interrogation.

1oE'2ln order to fill up this loophole, it is submitted that some of the aforesaid guiderines issued by this Fion,bre court, incruding right to be accompanied by Advocate, medicar examination etc, shourd be
made appricabre from the time any person who has been summoned by Police, attends the police Station.

1OF' MANDATORY INITIATION OF CRIMIN,AL PROCEEDINGS U/S. 302t304 tPc tN EACH CASE OF CUSTODIAL DEATH: 10F.1 In most cases of custodiar deaths or custodiar viorence,
criminal

proceedings are rarely initiated,

ll
10F'2 Eyen where criminal proceedings are initiated, the senior officers are scapegoat.

generaily ret off and onry some junior officers are made the

2003.

minor officers but ret off 10 senior officiars despite the cf D estbblishing their roles in the custodial death of yunus in January
t,

Maharashtra government to explain why it had rejected the state criminar Investigation Department (crD)'s prea to prosecute 1o officers of MumbJi poti.u in the Khwaja yunus murder case. The Maharashtra government had sanctioned the prosecution of four

rn December 200g, the Bombay High court asked

the

10F'3 Even at the time of framing of charges in cases of custodial deaths, no charge is framed under sections 3g2r3o4 rpc. In the case of

had been framed U/s. 302/304 tpc.

Mehboob Batcha & ors. vs. state l(2011) 7 scc 4sJ before this Hon'bre court, in a case of custodiar murder of husband and gangrape of wife, thiS' Hon'ble court felt it was a fit case deserving death penalty but could not increase the sentence since no charge

10F'2ln view of the aforesaid situation, direction should be given to

States that:

all

i.

ii.

rn every case of custodiar death, the officer in charge of the porice station or the Jair superintendent, as,the case may be, shourd be immediatery and automaticarry suspended and criminar proceedings shourd be commenced against him; In each case of custodiar death, there must be mandatory initiation of griminar proceedings U/s. 3021304.

1OG. RAISING REBUTTABLE PRESUMPTION OF MURDER IN EACH CASE OF CUSTOp|AL DEATH: 10G'1lt is trite that custobirl uiol"nce and custodial death occurs within the porice four wails of station or prison. In most cases there are no independent eye witnesses, In such a situation, when death occurs.

a rebuttable presumption must be raised that the victim has been

murdered by the Police/prison personnel present at the time. The onus and burden must be placed on the Police/prison personnel to prove their innocence.
t.

l2

10G'2The 185th Law commission has in fact recommended insertion of section 114-B to the Indian Evidence Act, 1g72

,,

terms:

in the following

"Presumption as to bodiry injury whire pof in ice custody

114

B' (1) In a

prosecution

of a police officer for an offence

committed by an act aileged to have caused bodiry injury to a person, if there is evidence that the injury was caused during a period when that person was in the custody of the porice, the court may presume that the injury was caused by the porice officer having custody of that person during that period.

(2)
ll

,. '

presumption under sub-section (.1), shail have regard to a1 the rerevant circumstances incruding, in particurar,
(a) the period of custody;

The court, in deciding whether or not it shourd draw

(b) any statement made by the victim as to how the injuries were received, being a stat6ment admissibre in evidence; (c) the evidence of any medicar practitioner who might have
examined the victim; and

(d) evidence of any magistrate who might have recorded or

attemp{ed to record the victim,s statement. (3) For the purpdse of this section, the expression ,police officer, includes officers of the para-milit ary torces and other officers of the revenue, who conduct investigation in connection with . economic offences.,, 10G.3

The Union df ,lndia should be directed

ro

regarding effecting such an amendment to the Indian Evidence Act.

1872.

submit its position

1OH. DIRECTIONS REGARDING AUTOMATIC SUSPENSION AND NATURE OF DEPARTMENTAL

l3

PROCEEDINGS

INITIATED IN EACH CASE bP CUSTODIAL DEATH:

To

BE

10H'1A perusal of affidavits filed by the various states shows that in most cases, the charge in the disciplinary proceedings initiated against the erring porice personner, is onry dereriction of duty or gross negligence'' ln the few cases where the poricemen are herd guirty, the punishment imposed is minimal,

the death of one Biswanath Das (later identified as Krishna Mondal) in 2008.

In the affidavit fired by state of west Bengar, in a case of custodiar death of one Jhantu Kar in 2007, the punishment imposed "major is a punishment of withhording annuar increment for one year," simirar punishnrent was imposed on two others in respect of

ln the affidavit of Madhya pradesh dated 30,i2.2010, in repry to the question as to how many cases resurted in finar disposal andlor finar resurt, the answer given is ,,rn one case stoppage of one increment for one year and fine Rs, soo/-.,, In the supprementary affidavit dated 27.06.2011, except in

one case of

compursory

retirement of ASr ancJ reversion of Head constabre to constabre, in all other cases, the punishment imposed was of withhording of one annual increment of one year. In the supprementary affidavit of Assam, in District

departmental proceedings were initiated, nor any of the porice personnel suspen'bed. In Karbi Angrong District arso there was one criminal case registered in 2007 but no departmentar proceedings. 10H.2Further,

rpc were initiated against suspected police officials in respect of custodial deaths, but no
302

two criminar actibhs' invorving

Goraghat,

s.

constable is made a scapegoat and is charged and punished even though severar other porice officers wourd certainry have been present at the police station at the time of the assault.

in most cases it is generaily found that onry a

single

Itt
of state of west Bengar, it is found that in "ifro,auit respect of custodial death of one Jhantu Kar, only one constable of District Armed Police was held liable. lt is inconceivable that at the time the said ihantu Kar was beaten, there were no other porice
personnel present.
policemen who took part in the assaurt or in any case, did not take any steps to save the deceased, thereby committing dereliction of
duty.

In the

lt is apparent that either there were other

10H'3lt is pertinent to note that Sections 7 and 2g of the Indian potice Act 1861 provide for dismissal, penalty or suspension of police officers who are negligent in the discharge of their duties or unfit to perform the same. However, even where the departmentar proceedings
estabrish guirt, dismissar is serdom imposed and the personner are,, let off with fine, warning, stoppage of increment etc.

1oH'4ln,view of the aforesaid, it is necessary that the following directions be given by this Hon'ble Court:

i) ii)

In every case of custodiar death, the officer in charge of the police station or the Jair Superintendent, as the case may be,
should be immediately suspended; Mandatory departmental proceedings must be initiated against 'of the officer rin charge the porice station or the Jair

iii)

superintendent, as the case may be, as weil as other erring personnel in every oase of custodial death;

since custodiar viorence/custodiar death is not merery

an

omission as courd be cailed "gross dereriction of duty,,, but an overt abt,,most often with maricious intent, the charge framed in departmental proceedings must be for intentionally causing death / grievous hurt;

iv)

Where departmental proceedings establish guilt of any police/ prison/ security personner regarding causing custodiar death, departmentar prpceedings must impose deterrent punishment
of atleast dismissal from service.

t{
1OI.
CUSTODIAL DEATHS:

IN, RESPECT OF CASES OF CUSTODIAL VIOLENCE AND

EXHORTING COURTS TO FOLLOW ZERO TOLERANCE POLICY

1ol'1 lt has been'found that in several gruesome cases of custodial violence and custodiar deaths, the punishment imposed
proportionate to the offence committed.

is

not

In the case of cBr Vs. Kishore singh t(2011) 6 where the porice constabre had mariciousry arrested

scc

369r,

account of personal'enmity and cut off his private part, the trial court sentenced the constable to 10 years rigorous imprisonment but the High court reduced it to sentence arready unoergone.

a person on

This Hon,bre

Court thereafter enhanced the sentence to years. 5

simirarry

accused in a case of custodiar murder of husband and gangrape of wife, got away with'r0 years rigorous imprrsonment since in the courts berow they had not been charged under section 302 rpc,
101'2 ln the circumstances, it is necessary that this Hon,ble court exhort the courts berow to foilow a poricy of zero torerance to cases of custodial viorenca.and custodiar deaths in the foilowing manner:

in the case of Mehboob Batcha (supra), the

i)

gravity of the crime.

The punishments imposed shourd be proportionate to

the

ii) ii') iv) v) vi)

In gruesorne cases, the penarty imposed should not be ress than three-fourth of the maximum penarty prescribed under
law, especially since the police are custodians of law. ln case, any lesser penalty is awarded, there must be very strong reasons for awarding such resser p"n"ity and the same must be duly recorded in the judgment.

There shourd be no reniency by courts in cases of custodial violence and custodiar deaths unress there are extenuating
crrcurnstances as recorded in the judgment. In appropriate cases, the higher courts shourd for enhancement of punishment.

issue notices

compensation/fine must mandatorily be imposed in each case of custodial death and also in cases of custodial violence.
The

l6
compensation/fine may be paid by the State

instance but subsequenily must

offending police Officers.

at the first

be

recovered from the

1OJ. SENSITIZATION OF THE POLICE PERSONNEL TO HUMAN

RIGHTS ISSUES:

l, r,

10J'1 lt is submitted that the principal problem pertains to use of illegal torce by Police without any regard to the human rights of citizens. The directions given by this Hon'ble court in the present case' [reported in (1992) l scc 416] are recorded on the board in the Police Stations'but implementation of the said directions leave much to be desired.

human rights of citizens and to the limitations of exercise of power.

I

The long term solution can only be sensitization of the police personnel The. states should therefore be directed to conduct regular and continuing courses to sensitize the police forces to

1oJ'2 The NHRC shouldlbe requested to prepare a course for sensitization

specified period for ail p"rronnJ'r who have undertaken the main course.

guidelines regarding qualification and experience of teaching staff etc" Thereafter, the state should take measures for disseminating the said coqrse to the Police Personnel from constables to station House officersl Every three months, the state Home Department should sent a report to thg sHRc giving information as to the number of porice stations in which the said course has been conducted and the number of porice personner who have undergone the course' Revision courses should be conducted after

of the porice personner to the human rights issues arongwith

TEK. IMPLEMENTATION OF THE RECOMMENDATIONS FOR POLICE REFORMS MADE BY THIS HON'BLE COURT IN THE CASE OF PRAKASH SINGH VS, UNION OF INDIA t(2006) 8 SCC 1J AND

t7
RECOMMENDATIONS FOR POLICE REFORMS MADE BY THE JUSTICE J.S. VERMA COMMITTEE:
10K' 1 lt should be ensured that the Police reforms directed by this Hon,ble

should be directed to file affidavits showing the status of implementation of the Porice reforms suggested in prakash singh,s case.
10K'2 since torture during interrogation is mosfly conducted in the absence

court in the case of prakash singh vs. union of India [(2006) g scc 1r and the porice reforms recommended by the Justice J.s. Verma committee are mandatorily irnplemented. In particular, the law and order maintaining department in the police force, should be separated from the investigating department. The states

of proper forensic and scientific skills, it is necessary that scientific methods of investigation be devised so that reliance on torture to secure confession, which is otherwise iilegar, is made redundant. pe,lbnh"l The Police from constables to station House officers should be given training in scientific and forensic crime detection
J

methods.

1OL. MANDATORY DEPLOYMENT OF

CONSTABLE tN EACH POLICE STATION: 10L'1 lt must be made mandatoryforevery Police station in the countryto have afleast one woman constabre having regard to women detenues. For this, it is necess ary for emproyment of more woman Police constables. The Police stations must also have Recessary infrastructure and facilities in respect of the said woman police constables and for temporary interrogation or detention of women, if so required.
ll

AT LEAST ONE WOMAN

i on,'. DrREcroN

To sHRcs To F,LE coMpLrANcE REpoRT

court in its orderdated','1 g.11.2001

REGARDING CONSTITUTION OF SUB.COMMITTEES IN TERMS OF ORDER DATED 19.11.2001:

1OM 1 This Hon',bre

[reported in (2003) 7231 had directed the state Human Rights Committees of different States/ union territories to constitute a sub-committee with a

11

scc

vrew to monitor and ensure compliance of the said reguirements. lt needs to be ascertained whether the said SHRCs have actually constituted the said sub_committees and whether such monitoring is actually being carried out.

l8

1ON. NOTICE TO UNION OF INDIA REGARDING INDIA'S SIGNING OF 1975 UN CONVENTION AGAINST TORTURE AND

CRUEL, INHUMAN AND DEGRADING TREATMENT

OTHER

OR

PUNISHMENT (UNCAT) AND PdSSITC THE PREVENTION OF TORTURE BILL:

10N'1UN Convention' against Torture and Other Cruel, Inhuman and Degrading Treatment or punishment (uNcAT) , lgTscame into force in 1997. Ho,wever, India is not a party to the said convention. rt is pertinent to note lthat the provisions in the said convention are
mosily arready being impremented by the Indian Judiciar system. In such circumstances, it is hecessary to call for repry from the union of India as to whether the same not be ratified and made part of Indian

law,

10N'2The Prevention of Torture Bill was passed in the Lok Sabh ainz01o. Having regard to certain deficiencies in the Biil, the Rajya sabha referred it to a serect committee, rt appears that the Biil has been redrafted by the serect committee but its report has not yet been tabled for discussion,r'lt is submitted that the Union of India should be called upon to fire a repry and inform about the enactment of appropriate law on prevention of Torture.

1O'O NEED FOR UNIFORM DEFINITION OF CUSTODIAL DEATH AND INCLUSION OF UNNATURAL DEATHS WITHIN 24 - 48 HOURS OF ALLEGED RELEASE FROM CUSTODY:

10o 1lt is submitted that a consistent and uniform definition of custodial death is required for uniform reporting by ail the States, In the absence of a specific definition, some States may exclude
deaths in custody due to nalurar causes whire some states may incrude the . ,,

deaths.

same. Some States may erroneously consider deaths byr suicide in police or judicial custody to be outside the purview of custodial

t9

10"-'2Encounter kirings of persons in custody often take prace with the person being shown in the books as having been rereirsed from custody and thereafter being talien to forest or secludecl place or railway line and killed, since the death takes place outside the four walls of police station, anrd after alleged release from custody, it is not reported as custodial death. rrn order to prug this roophore, it is necessary to incrude in the term ,custodiar death,, afr pers;ons who were in custody and who have died an unnatural death within 24 0r 48 hours of being releaserJ from custody.
J

10o'3There should be an uniform format for reporting of custodial deaths, The reporting shourd commence from the point of entr,/ of the deceased to the police station or pr;jsep, till the time of demise. The central Government should be ctirected *o devise such uniform exhaustive format for reporting of c;ustodial deaths, as woulcj help in
collation, aggregation and proper analysis of data.

11.

DIFFERENT STATES:

COMMENTS ON THE AFFIDAV'ITS FILED ON BEHALF OF

11A. ASSAM:
11A.1

departmental or criminal proceedings against officers did not arise. This was patently. contradictory to the centraf Govt. list which stated that there were B porice custody deaths in Assam in 2006_0 7, 12 in 2007-08 and 7 in 2008_09.
I

ln its originar Affictavit dated 2g.1z,zo1o, Assam stated that there wele no deaths in porice custody ,6p6 therefore the question of

A.2Subsequenfly,

Arrj,

where

it

admitted to

filed additionat affidavit dated 0g.02.2011 19 police cusilodial deaths and 6 cusitodial

I
I

'r

under_1g det6nues.

injuries during 2OO7 to 2010. -fhe State has tried to explain the earlier affidavit stating that ther figures therein pertained only to

2a

!1A'3 The chart shows that [n District Golaghat, two criminal actions involving s' 302 lPc were initiated against suspected poli<;e officials in respect of custodiar deaths, but no departmentaf pr'ceedings were initiated, nor any of the porice personner suspended. In Karbi Anglong Districf also there was one criminal case registered in 2007 but no departmental proceeclings. In District sivasagar, there is
(suspension) is shown to be taken against two officers for gross negrigence of duty. In cachar cristrict, one criminar action was initiated in 20Q7 for custodial death. while the criminal case is
with

no stated case of death or injury, yet department'r

action

cumulative effect and severe repnimand for indisciplined conduct, whire two other porice officiars were nrerery reprimanded for indisciprined conduqt' Another set of departmentar proc;esfling5 drawn against the three officers in ,200g is still pending with findinos submitted but order yet to be passerC.
11A'4

still under investigation, departmentar proceedings have been completed' one sl was punished with stoppage of increnrent

returned in F.R, to the Hon,bre court,,, In Karbi Angrong it is merery stated that the "presenty the case is the stage of submission .f F,R.,, ln a case of custodiar hurt in 2007 in Bongaigaon distri,ct, the criminal cases have merely resulted

District Goraghat, since it is merery staterd that the same ,,was

lt is not apparent what happened in the two criminaf

actions in

in fine of Rs.

1000t_.

sOO/- and Rs.

118. WEST BENGAL '. ,. 118'l west Bengal has reported only one custodial rieath in 2007 and in 2009' However the figures obtained from centrar
state the custodial death figures as 7
2009

one

Government

in

2oo',7,

B in 2OOB an<j 4 in

!18.2 Even in respect of the two custodial deaths admitted b), the State

2l

Government, no criminal proceerdings were launched against any of the offenders.

1B'3 Departmentar proceedings resurted

onry

lapse of duty.

increment f'r one year wirthout any cumurative effdct,'in respect of the first case and withtrording of increment for six months without any cumLifative effect in tf-re second case' Departmental proceeding against one person in the second case is still penbing' The police personnel were merely held liable for

penarty"

of

withhording

of

in imposition of

,,major

11C. MADHYA PRADESH:

11c'l Madhya Pradesh first filed an affidavit datect 3Q.12.2010 adrnitting only one custodiar death in 2007,,rat of a woman, who is ailreged

to to

have committed suicide' No criminral action was initiated in respect thereof' Departmental action resulted in the Inspector bei'g fined Rs' 500A and in respect of the head constabre, one increment was stopped for one year.

\11c'2The figures given in the affidavit

contradicted by the Central Government figures in parliament which show 10 custodial deaths in 200.7., 10 in 2OOB and 5 in 2009.
\^/ere
T

11c.3Faced with these figures, the state came up with a subsequent affidavit dated 27,06.201 1, where trhe number of custodial deaths has been admitted to be oB (during 01.04.2007 to 31.03.200g), 05 (during 01,04,2008 to 31.03.2009) and 0B (during 01.04,2009 to 31'03'2010)' 'Even in respect bf tht-. admitted deaths, most have been exprained away as deaths by iilness and suicide and The figures in the earlier affidavit have been gxpraineld by stating that they onry
and 3 deaths respectively have been acknowledged as death other, causes (apart from iilness anrJ suicide).
onry 1,2
<Jue to

pertained to u,orren and minors and the remaining information was now being submitted.

,,

11c'4rn custodiar death matters, onry,in respect of 2 cases

22irn 2007_0g,

criminal proceedings were initiated, in others, admittedry no criminat proceedings Were initiated. There is no expranation as to why no criminal aqtion were initiated in rr.'spect of custodial deaths; occurring in 2008-09 and 2oog-10. In it",u t*o criminal actions initiated, one is pending while the other has resulted in acquittal. The staite has not stated whether it has ch'arenged the verdict of acquittar.

11c'5The punishments imposed in departmentar proceedings are arso grossly inadequate, In the supplernentary arffidavit dated 27.06.2011,
except in one case of compulsory retirement of ASI and rerersion of Head constabfe to constabre, in a, other cases, the punishment rmposed was of withhordini' 0f one annuar increment of one
vear.
r.

11D.

PUNJABT

11D'1The Affidavit dated 25.11.2010 fireci by state of punjab pertains onry to persons under 18 years of agre. The state has not gi,ven any figures for persons above 1B years of age. Hence the inf'rmation provided is incomprete and not in compriance with orders of this Hon'ble Court.
1

1D.2As per the figures of Central govt./ NHRC, the number of deaths in police custody in punjab were 1 in 2007,7 in 2OOB and 4 in 2009.

1D'3lt is pertinent to note that the Tarn Taran case set out at para 7 of the present submissions, give a nearity check on the curstodial -.rr" conditions in eunjau. The NHRC is arso *r"rinlng ; or
recovery of buried dead bodles durinlg the time of punjab militerncy. lt is necessary that,the state file full and true iinformation before this

Hon'ble court aho take appropriate action violence and custodial deaths. 11E. TAMIL NADU: 11E.1fhe Affidavit dated January

to check cur;todial

2011 filerd by the State of Tamil Nadu admits to 3 custodial deaths in 2007, 2 in 2OAB and 4 in 2009 (all

23
periods from 1.t April to 31't Manch). This; is contrary to the Central Govt./ NHRC f/gures, which repo,rt 16 custodial deaths in 2007. 6 in 2008 and 6 in 2009.

11E'2ln custodial death matters, no criminal action was

initiated. Explanation should be called for from the sitate as to why no criminal action was initiated.

1E'3 Even departmental action

l,

cases' As per the affidavit, onry ,2 departrnentar proceedings were initiated in 2oo7-08 and 4 in 2oog-10 in res;pect of custodiarl deaths. There is 1oo% pendency in <lepartmentar proceedingls. ft is submitted that such absence of criminal or departmentar action embolden police and prison personnel to bliltanily violate thr-. human rights of individuals,

has not been initiated in all custodial

11F. UTTAR PRADESH:

11F'1The'Affidavit dated 14.o1.2o11fired by state of U.p. admits to 12 custodiar deaths in2007-08,4 in 2008-Og and g in 200g_10. This is contrary to the figures given by centrar Govt -NHRC which rerport 11 deaths in 2007, 32 in 2OOB and 24 irr 2009.
11F'2ln the deathJadmitfed by the State, one of the deceased was under 18 years of age in 2007. The state has erxprained that thre said deceased was accused of offence u/s 376 rpc and was bearten by public and succumbed to injuries. rt is stated that three persons alleged to have beaten the minor w(3re chargesheeted u/s 304 fpc and sent to jair whire the guirty porice personner were suspended and punished for dereliction of duty for having faired to take sulTicient precaution to secure the accused fronn the peopre,s wrath. 11F-3criminar action is stated to have been taken in cases in 2Ct07, 4 cases in 2009 and B i.ases in 200g. Hence cniminar action hers not been initiated in ail cases. In fact, if tire centrarr Govt._NHRc filgures

ll

imposed by trial court of life imprisonment and fine of Rs. 1 tac while in one case there has been acquittal,
tt

are considered, the number of cases in which criminar action has been initiated, is very row. orrry in one case punishment was

2/1

11F'4Even departmental action has not been initiated in all cases of admitted deaths' The number of departrnentar actions initiated in 2007 is only 8, in 2008 only 3 and in 2000 only 5. No deprsptmental
actions have been initiated in any case of hrurt or grievous hurt.
t.

11F'5 rt is pertinent to note that

dead in lock up" that it was the si:xth 'custodial death, in Glhaziabad in ress than four months. rt is submitted
alarming situation.

rhe Tinres of India dated 2g.07.,,2013 has reported in the front page under the caption ,,Acid thrower found
that this is an erxtremery

11G. MAHARASHTRA 11G'lMaharashtra has the highest nunnber of custodial deaths; in the country, According to centrar Gov,t./NHRc figures, the nurnber of custodiar deaths in Maharashtra in 2007, 2aog and 2009 is, ll, 25 and 23' state of'Maharashtra in its reply has put the figuresi for the three years as 20, 2g and 23. rt ir; possibre that the difference
figures has arisen since Maharashtra has computed the years-on April to 31.tMarch basis.
in
1.r

11c.2lt is noteworthy that many of the custodial deaths admitted

Maharashtra are women.

by

11G.3criminar action in custodiar death matters has been initiated in only 1 case in 2907,2 cases in 20oB and 1 case in i2009. The resurt of the criminal action is not stated.

',,.

11G'4 The number of departmental proceedings initiated are not stated, merely the number of personner against whorn departmentar action

25
been initiated in respect of hurt and grievous hurt cases. The outcome of the departmental proceedings is also not s;tated. The
was initiated' are set out in the affidavit, No departmental action has

Affidavit of Maharashtra is thus incompletc,.

11H, KARNATAKA: 11H'1The information provided by sitate

2008 and 2oog are B, s and 2r. respectivery. Karnatakzr affidavit shows death of one rnare under 1g years rcf age, without
how the death of the minor occurred.
erxpraining

respect of custodiar death, pertains onry to rlersons underthe age of 1B years. Hence the affidavit is insufficient, As per centrar Govt./ NHRc figures, the number of custodiar deaths in Karnataka durin g 2007,

of Karnataka in

11H.2No. criminal action has been initier{ed in custodial death rnatters. 3 departmental proceedings are reported to have been initiated in custodial death. matter but the outcome of that proceedinrg is not clear from the affidavit.
1H.3

Certain departmental proceedings are rr:ported initiated in hurt/griJuo* hurt cases, in which there

to

have

been

are 2 dismissals, 1 removal, 4 censures and 1O increrments postponed,

11H.4lt is.further stated that out of 9 criminal actions, 5 cases have been compounded, 3 resulted in acquittals and in 1 case there was mistake of fac7law. 6 criminal actionrs are stated to be pending Trial. The affidavit is incomplete and furthelr information is required,

11.1. HARYANA:
11-l'1 The affidavit

and none in 2008 & 2009. However, In pirra 3 0f the affidavit, it is stated that there are 4 suicides-two at Kaithar and one each at parwar and Panipat. Again, at para 6 of the annexure to the affidavit, one FrR is lodged in 2007 and another in 2008 in respect of matters resutting in

of state of Haryana gives figures onry for custodial death under the age di ra years. one death is reported in 2o0T

26 death. Hence, the information pnovided in the affidavit of Haryana, is contradictory', insufficient and incomprete. rt is pertinent to note that as per Central Government/ NHRC, the inumber of custodial deaths is 2 in 2007, g in 2008 and 6 in 2009.
11-l.2ln respect of death cases, in
FIR filed in 2007, all the accused were acquitted Oy Court. The FtFt of 2008 seems to be still pending. ln one of the suicide cases from Panipat, one person is rreported to have been awarded stoppage of two annual increments with temporary effect.
thei

11-1.3

during 2007 to

No hurt or grievous hurt are reported to nave occurred in custody

2OOg

and

therefore

departmental proceedings are reported.

no criminal arction or

11-1.4 fn the case of alleged suicides at K.aithal, compgpsation of Fis. S lacs

each was awarded by punjab & Fraryana F..|igh court to the next of kin of two victims,,,rn the other two aileged suicide cases, NHRC awarded compensation of Rs. 1 lac each.
,

11J.

ORTSSA:

11J.1 Orissa has fited an affidavit dated Ctz.04.2013 in which it has; merely stated that it had fired affidavits d;rted 24.0g.1gg7 and 20.0g,1gg7

and again on 17'02'1998 about alleged custodial deaths. tt has not given any information in terms of order datecl 24.09.2010 pas;sed by this Hon'ble court in crl. M.P. No. 19694 0f 2010. ft is submitted that State of orissa is in deriberate non-comprianc;e with order passed by this Hon'ble Court.

,
I

11J'2 rt is pertinent to note that as per centrar Government/ NHR6 figures, the number of custodiar deaths in orissa is 2 in 2007,6 in 200g and 2 in 2009.
I

11K

RAJASTHAN:

11K.1The information given by state of Rajasthan is; not in terms of order dated 24.09.2010 passed by this Hon,bre

court in crr. M,p,

No.

19694

of

77
2010. The State

merely set out the status of custodial death from year 2010onwards.

in its affidavit dated 31.0:l .2012 has

11K'2The information given by state of Rajasthan shows 1 cust'dial death tn 2010 and 2 custodiar deaths in 2011. Arthe cases are prsnfling.

11L. NAGALAND:
I

11L'1 The information given by state of Nagala'd is not in terms of order dated 24.09.2010 passed by this Hon,bre court in crr. M.p.

19094

1s.04.:2013 has rrierely set out the number of custqdial deieths each year frrom 2006 to 2012' without giving details abclut the cases lodged, action taken and status of proceedings.

of 2010. The state in its affidavit dated

No.

11K.2The information given by State of Nagaland shows 4 custodial deaths in Z0OO, 2,in 2OOT, 200g, 1 in 20Og and 3 custodi;rl deaths each in 2010,201.1 ,nO 2Qt12.

11L. HIMACHAL PRADESH:

11r'1 Affidavit dated 11.07.2013 submitted by Himachar pradesh merery sets out thg number of deaths from 2007 to 31,05.2013, without indicating the Lction taken, The erffidavit admits to a totat of 24 custodial deaths from 2oo7 tp 31.0tt.2013 arrd one case of custodial torture' yet, the sHRc is non-functioniar since the 6lost of ,
Chairperson and sole memoer rematn vacant.
r'

11M. CHANDTGARH:

11M'1

have been instared in each and every porice station, which are monitored by the supenvisory officers of the units and senior officerrs at police
affidavit admits one case of custodial death 2008.

Affidavit dated 08.04.2013 fired on beharf chandigarh' states that ccrV cameras

of the L/.T. of

headquarters. The in 2007 and two cases in

11N. UTTARAKHAND:
1

28

1N' 1 Affidavit

dated 2s.qJ.2013 fired on beharf of Uttarakhand gives onry the number of custodiar 'gain deaths, without specifying the action taken pursuant to the said custodial deaths. The affidavit admits to 3 custodiar deaths in 2006, 3 in 2007, 1 in 200g, nir in 200 g, 2 in 2010, 4 in 201 1 and nit in 2012.

PRAYE:R

fn the circumstances, it prayed is that this Hon'ble Court be pleased to: a) Pass directions as prayed for at para 10A to 1O_O in the present

affidavit

b) Pass such other order or orders as this

Hon,bre court may deem fit and proper in th6.cjrcumstances of the case.

Settfed By:
Dr, A,M,

Singhvi

Drawn by:

Sr. Advocate

AMICUS Curiae
NEW DELHI
D,ATE: 22.11.2Q13

(Pranab Kumar t\4ullick) Advocate for AMICUS Curiae

I
I

'r