“Death in custody is one of the worst offenses in a civilized society governed by law”. When a policeman arrests a citizen, do their fundamental rights to life cease? Does the citizen’s right to life be arrested, Can be suspended after?
In fact, the answer to these questions should be “no” in a concrete way. –DK Basu vs. Supreme Court of West Bengal
Independent investigations into custody death / torture cases have been a major problem, at least in the early stages, due to the fact that the police themselves are asked to investigate against themselves. The Supreme Court has commented on the mutual ‘brotherhood’ of the police, which impedes consequential investigations in cases of violence in custody:
In many cases, investigations are later handed over to independent agencies such as the CBI, or special investigation teams, in most cases due to lawsuits fought by relatives of the victims. However, giving subsequent investigations to such agencies cannot assure any tangible results if the early critical stages of evidence gathering, such as post mortems, inquiries, etc., have been manipulated.
Keeping in mind this problem, a process of parallel magisterial investigation is envisaged immediately after the event. This is in accordance with Section 176 (1A) of the Code of Criminal Procedure, which has been inserted in the CRPC after amendment in 2005.
Section 176 (1) CRPC states that a magistrate, who has the right to inquire into cases of unnatural death, may inquire into the cause of death in addition to the investigation being conducted by the police officer. It is a general, empowering provision that gives magistrates the discretion to conduct such an investigation. Another fact is that such inquiry or investigation can be done by the Executive Magistrate or Judicial Magistrate.
On the other hand, section 176(1A) is a special provision to deal with cases of death, disappearance or rape in police custody. The provision states that in such cases, the judicial magistrate or metropolitan magistrate, in whose local jurisdiction the offense has been committed, shall conduct an inquiry in addition to the inquiry or investigation conducted by the police.
The section can be understood as follows:
This inquiry parallels the police investigation into death / rape / disappearance in custody.
This investigation cannot be done by an executive magistrate and must be done by a judicial magistrate.
This inquiry is mandatory (appears in section 176 (1) by the use of the word “shall”, which is different from the word “may”). Section 176 (5) inserted after the 2005 amendment empowers the magistrate to conduct such an investigation, within 24 hours of the person’s death, to send the body to the nearest civil surgeon for examination. If it is not possible to do so, the reasons must be recorded in writing.
Deepanshi Rajput 