Criminal Procedure: Code of Criminal Procedure, 1973 / Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS)
Custodial Violence and Custodial Death under the BNSS 2023
Custodial Violence and Custodial Death under the BNSS, 2023: Section 53, Section 56, the Magisterial Inquiry under Section 196(3), and the Problem of Proof
Custodial violence is the crime that the criminal justice system commits against itself. It is committed by the persons entrusted with enforcing the law, in a place they control, against a person who cannot leave, and it is recorded by the very people who would be accused of it. That combination makes it both peculiarly grave and peculiarly difficult to prove, and the law’s response has been shaped by both facts.
The Bharatiya Nagarik Suraksha Sanhita, 2023 does not contain a chapter on the subject and creates no offence of torture. Its contribution is structural: it requires a record of the condition of every person entering custody, imposes a duty of care during custody, excludes what violence in custody might otherwise produce, and requires a judicial inquiry when a person dies or disappears in it. Punishment is left to the Bharatiya Nyaya Sanhita, and compensation to the constitutional courts.
Figure 1: The statutory shield, in four limbs
1. The Baseline: Section 53
The first limb is a record. Section 53 requires every arrested person to be examined by a medical officer in the service of the Central or State Government, and in his absence by a registered medical practitioner, soon after the arrest is made. A female is examined only by or under the supervision of a female medical officer or practitioner. The record must mention any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted, and a copy of the report must be furnished to the arrested person or his nominee.
Every word of that does protective work. The examination is mandatory and universal, so there is no category of arrested person whose condition on entry goes unrecorded. It is soon after the arrest, so the record relates to the moment custody begins. It records the approximate time of infliction, so an injury can be located in time and attributed or excluded. And the copy goes to the person, so the record is not held exclusively by the authority that might be accused.
⚠ Why the copy matters more than the examination A medical record held only in the case diary, or only in the hospital register, is of limited use to a person who alleges that he was assaulted after it was made. He may never see it, may not know it exists, and may be unable to produce it. Section 53(3) changes that. A person who holds his own report, showing that he entered custody uninjured, has the material with which to establish that any injury came later. That single document is the difference between an allegation that can be tested and one that cannot. The practical consequence for a practitioner is that the first question at the first production is whether the examination was conducted and whether the copy was furnished. The Magistrate’s duty under section 48(4) to satisfy himself of compliance is the occasion for asking it. |
2. The Duty During Custody: Section 56
Section 56, BNSS 2023 It shall be the duty of the person having the custody of an accused to take reasonable care of the health and safety of the accused. |
The section is one line and was inserted into the Code of Criminal Procedure as section 55A by the amendment of 2009. It is easy to pass over, and it is the only general statement in the Sanhita of what a custodian owes to the person in his custody. Three features of the drafting repay attention.
- The duty attaches to the person having custody, whoever that is. It binds the officer in charge of the police station, the escorting officer, the officer conducting an interrogation and the jail authority, and it does not depend on rank or designation.
- It covers health and safety, which is wider than an obligation not to assault. It extends to medical attention, to protection from other prisoners, to conditions of confinement, and to the risks that arise from the condition of the person himself.
- The standard is reasonable care, which imports the ordinary test of what a reasonable custodian in that position would have done. It is the standard on which a failure to provide medical attention, or a failure to prevent a foreseeable harm, is judged.
Read with sections 43(3) and 46, which confine restraint to what is necessary, and with section 53, which establishes the condition of the person on entry, section 56 supplies the legal basis for the proposition that a custodian who returns a person in a worse condition than he received him has something to explain.
3. The Evidentiary Bar
The third limb removes the principal motive for violence in custody by making its likely product unusable. The rule comes from the law of evidence rather than from the Sanhita, and it has three parts.
- A confession made to a police officer is not to be proved against a person accused of an offence.
- A confession made by a person while in the custody of a police officer is not to be proved against him unless it is made in the immediate presence of a Magistrate.
- Where information given by a person in custody leads to the discovery of a fact, so much of that information as distinctly relates to the fact discovered may be proved, whether or not it amounts to a confession.
The Sanhita supplies the counterpart machinery. Section 183 permits a Magistrate to record a confession or statement, and requires him, before recording a confession, to explain to the person that he is not bound to make it and that anything he says may be used as evidence against him, to satisfy himself that it is being made voluntarily, and to record a memorandum at the foot of the record. A confession that fails those requirements is not a confession the section permits.
The design is deliberate. If a confession extracted in a police station cannot be proved, the incentive to extract one is removed; and if the only usable confession is one made before a Magistrate after a warning and a finding of voluntariness, the judicial officer becomes the filter. Whether the design works in practice is a different question, and the persistence of custodial violence notwithstanding the bar is the reason the other three limbs exist.
4. The Mandatory Inquiry: Sections 194 and 196(3)
Section 196(3), BNSS 2023 Where a person dies or disappears, or rape is alleged to have been committed on any woman, while such person or woman is in the custody of the police or in any other custody authorised by the Magistrate or the Court, under this Sanhita in addition to the inquiry or investigation held under this Sanhita, an inquiry shall be held by the Judicial Magistrate or the Metropolitan Magistrate, as the case may be, within whose local jurisdiction the offence has been committed. The Magistrate holding such an inquiry shall record the evidence taken by him in connection therewith in any manner hereinafter prescribed according to the circumstances of the case, and shall forward the body for examination to the nearest Civil Surgeon or other qualified medical person appointed by the State Government, unless it is not possible to do so for reasons to be recorded in writing. |
4.1 The features of the inquiry
Element | Position |
|---|---|
When it is required | Where a person dies or disappears, or a woman is alleged to have been raped, while in the custody of the police or in any other custody authorised by a Magistrate or court |
Who holds it | A Judicial Magistrate, not an Executive Magistrate and not the police. The inquiry is judicial |
Is it in addition to the police investigation | Yes. The words are “in addition to the inquiry or investigation held under this Sanhita”. The magisterial inquiry does not replace the investigation and is not a substitute for it |
Is it discretionary | No. The word is “shall”. The inquiry is mandatory on the occurrence of the event, and does not depend on any complaint being made |
Post-mortem | The body shall be forwarded for examination to the nearest Civil Surgeon or other qualified medical person, unless it is not possible to do so for reasons recorded in writing |
Evidence | The Magistrate records the evidence taken by him, and the record is available in any proceeding that follows |
Relationship to section 194 | Section 194 requires the officer in charge to inquire into and report on a suicide, or a death by an animal, machinery, accident or in circumstances raising a reasonable suspicion that some other person has committed an offence. Section 196(3) applies specifically to a death in custody and requires a judicial inquiry in addition |
The significance of section 196(3) is that it removes the discretion. Without it, whether a death in custody was inquired into would depend on whether the police chose to treat it as suspicious, which is to leave the question to the persons whose conduct is in issue. With it, the inquiry follows automatically from the fact of the death, and it is conducted by a judicial officer who is independent of them.
5. The Problem of Proof
Figure 2: The difficulty and the judicial response
📖 State of Uttar Pradesh v. Ram Sagar Yadav, (1985) 1 SCC 552 Facts: A cultivator lodged a complaint against a constable for demanding a bribe. He was thereafter taken into police custody, was found to have a large number of injuries, and died. The policemen concerned were convicted at trial; the High Court acquitted them on the footing that the prosecution evidence, coming largely from the family of the deceased, was interested and that the circumstances were consistent with other possibilities. Held: The Supreme Court restored the conviction. It held that where a person in police custody receives injuries and dies, the policemen in whose custody he was are the persons who must explain how the injuries were caused. Direct evidence of what happens inside a police station is by the nature of the thing rarely available, since the only persons present are the policemen and the victim, and to insist on it is to make the offence unprovable. The Court observed that the law as it stood placed the burden of proof on the prosecution in circumstances in which it could seldom be discharged, and recommended that the law of evidence be amended so that where a person in police custody sustains injuries, it is presumed that the injuries were caused by the policemen having custody, with the burden of explanation on them. Ratio: Where a person is taken into custody in good health and is injured or dies there, those who had custody must explain. The absence of independent witnesses is a feature of the offence, not a reason to acquit. |
📖 Munshi Singh Gautam v. State of Madhya Pradesh, (2005) 9 SCC 631 Facts: The accused policemen were prosecuted for the death of a person in their custody. The evidence was circumstantial, the witnesses were few, and the trial had turned on whether the prosecution had established the sequence of events with the certainty required in a criminal case. Held: The Supreme Court held that custodial violence and torture strike a blow at the rule of law and that the courts must deal with such cases realistically. Rarely will direct ocular evidence be available, because the only witnesses are policemen who are unlikely to depose against their colleagues. A hyper-technical approach, or an insistence on the same quality of evidence as in an ordinary case, would result in the guilty going free and would make the constitutional guarantee illusory. The Court held that the courts must be sensitive to the position of the victim, must draw appropriate inferences from the failure of the custodians to explain injuries, and must at the same time guard against the conviction of an innocent officer on a false allegation, since the position of the police in maintaining order is itself important. Ratio: The evidentiary approach in a custodial violence case is adapted to the nature of the offence. Inferences may be drawn from an unexplained injury, and an over-technical insistence on direct evidence defeats the purpose of the law. |
5.1 The propositions that have emerged
- The burden of explanation lies on those who had custody where a person is taken in healthy and comes out injured or dead.
- Direct evidence is not insisted on. Its absence is a characteristic of the offence and is not by itself a reason to acquit.
- The evidence of policemen is not rejected merely because they are policemen, but is scrutinised with care, and their reluctance to depose against colleagues is a factor the court takes into account.
- Delay in complaining is assessed in the light of the position of the victim, who may remain in the power of the same officers.
- The medical evidence is central, which is why the record under section 53 and the post-mortem directed under section 196(3) are of such importance.
- A false allegation is also a serious matter, and the court guards against convicting an officer on an unfounded charge.
6. Punishment and Compensation
The Sanhita provides the machinery; the consequences come from elsewhere.
Consequence | Source | Content |
|---|---|---|
Criminal liability | Bharatiya Nyaya Sanhita, 2023 | Voluntarily causing hurt or grievous hurt to extort a confession or to compel restoration of property is a distinct and aggravated offence. Wrongful confinement, culpable homicide, murder, and custodial rape are separately punishable. India has no separate offence of torture |
Sanction to prosecute | Section 218, BNSS | Sanction is required to prosecute a public servant for an act done in the discharge of official duty. It must be decided within one hundred and twenty days, failing which it is deemed granted. Whether custodial violence is an act done in the discharge of official duty at all is itself a question |
Compensation | Articles 32 and 226 | A remedy in public law, based on strict liability for the breach of a fundamental right, distinct from a civil action; sovereign immunity is no defence. Custodial death is the clearest case for an award in a writ proceeding |
Departmental action and contempt | The directions in D.K. Basu | Non-compliance with the custodial safeguards attracts departmental proceedings and proceedings for contempt of court |
Human rights machinery | Protection of Human Rights Act, 1993 | Every custodial death or rape is required to be reported to the National Human Rights Commission within twenty-four hours, and the Commission may inquire, recommend compensation and recommend prosecution |
International obligation | Convention against Torture | India signed the Convention in 1997 but has not ratified it. The Law Commission in its 273rd Report recommended ratification and the enactment of a law against torture with a presumption where injury is sustained in custody. No such law has been enacted |
⚠ The gap that remains The Sanhita records the condition of the person on entry, imposes a duty of care, bars the confession that violence might produce, and requires a judicial inquiry on death. Each of those makes concealment harder. None of them punishes custodial violence as such. There is no offence of torture in Indian law, no statutory presumption where a person sustains injuries in custody, and no statutory scheme of compensation for custodial harm. The recommendations of the Supreme Court in Ram Sagar Yadav in 1985 and of the Law Commission in its 273rd Report have not been acted upon. The honest statement of the position is therefore that the procedural architecture is substantial and the substantive and evidentiary response is incomplete, and that the burden of the response continues to be carried by the constitutional courts through the public law remedy in compensation. |
7. Key Takeaways
The position stated shortly 1. The Sanhita creates no offence of torture. Its response to custodial violence is structural: a record on entry, a duty during custody, an evidentiary bar, and a mandatory inquiry on death. 2. Section 53 requires the medical examination of every arrested person soon after arrest, recording injuries and marks of violence and the approximate time of infliction, with a copy of the report to the arrested person or his nominee. 3. Section 56 imposes a duty on the person having custody to take reasonable care of the health and safety of the accused. It binds whoever has custody, covers more than an obligation not to assault, and is judged by the standard of reasonable care. 4. A confession to a police officer, and a confession by a person in police custody made otherwise than in the immediate presence of a Magistrate, are not provable. Section 183 requires a warning, a finding of voluntariness and a memorandum before a Magistrate records a confession. 5. Section 196(3) requires a mandatory judicial inquiry by a Judicial Magistrate where a person dies or disappears, or a woman is alleged to have been raped, while in police custody or in custody authorised by a Magistrate or court, in addition to the police investigation, with the body forwarded for post-mortem. 6. Where a person is taken into custody in good health and is injured or dies there, those who had custody must explain: Ram Sagar Yadav. 7. Direct evidence is rarely available and its absence is a characteristic of the offence; a hyper-technical approach defeats the purpose of the law, though the court guards equally against a false allegation: Munshi Singh Gautam. 8. Prosecution of the officer requires sanction under section 218, which must be decided within one hundred and twenty days, failing which it is deemed granted. 9. Compensation is awarded as a public law remedy under Articles 32 and 226; custodial death is the clearest case for an award in a writ proceeding. 10. India has not ratified the Convention against Torture, has enacted no law against torture, and has not adopted the presumption recommended in Ram Sagar Yadav and in the Law Commission’s 273rd Report. |
8. Frequently Asked Questions
Is there an offence of torture in Indian law?
No separate offence of torture exists. Custodial violence is prosecuted under the general provisions of the Bharatiya Nyaya Sanhita on hurt, grievous hurt, wrongful confinement, culpable homicide, murder and rape, and under the aggravated provision dealing with hurt caused to extort a confession.
Is a magisterial inquiry compulsory in a custodial death?
Yes. Section 196(3) requires an inquiry by a Judicial Magistrate where a person dies or disappears, or a woman is alleged to have been raped, while in the custody of the police or in any other custody authorised by a Magistrate or court, and the inquiry is in addition to any investigation under the Sanhita.
Who conducts the inquiry into a custodial death?
A Judicial Magistrate within whose local jurisdiction the offence was committed. It is not an Executive Magistrate and not the police, and the body is forwarded for post-mortem examination unless that is not possible for reasons recorded in writing.
Who has to prove how a person in custody was injured?
The prosecution bears the legal burden, but the courts have held that where a person is taken into custody in good health and emerges injured or dead, those who had custody must explain how that happened, and a failure to explain tells against them.
Why is a confession to the police not admissible?
Because a confession obtained in the control of the persons investigating cannot safely be assumed to be voluntary. The law of evidence excludes a confession to a police officer, and a confession by a person in police custody unless made in the immediate presence of a Magistrate, and section 183 of the Sanhita requires a warning, a finding of voluntariness and a memorandum before a Magistrate records one.
What compensation is available for a custodial death?
Compensation in public law under Articles 32 and 226, awarded on the footing of strict liability for the breach of Article 21, to which sovereign immunity is no defence. The National or State Human Rights Commission may also recommend compensation, and a civil action lies in addition.
Related Topics
- Illegal Arrest and Compensation under the BNSS, 2023
- Rights of an Arrested Person under the BNSS, 2023
- Medical Examination under the BNSS, 2023: Sections 51, 52 and 53
- Arrest of Persons under the BNSS, 2023: Sections 35 to 62
- Recording of Confessions and Statements: Section 183, BNSS
- Inquiry into Unnatural Deaths: Sections 194 to 196, BNSS