“Administrative Lawlessness”: Jharkhand High Court Orders Enquiry Into State’s Failure To Conduct Judicial Probes In 262 Custodial Death Cases

The Court was hearing a public interest litigation seeking implementation of Section 176(1-A) of the Code of Criminal Procedure, 1973, now Section 196(2) of the Bharatiya Nagarik Suraksha Sanhita, 2023, mandating judicial inquiry in every case of custodial death, disappearance, or custodial rape.

A Division Bench comprising Chief Justice M.S. Sonak and Justice Rajesh Shankar observed: “When the Executive ignores the judicial inquiry mandated by Parliament and substitutes it with its own administrative process, it renders that procedure a mere farce, stripping the deceased and their kin of their fundamental rights. Furthermore, the arbitrary selection of which cases receive a judicial inquiry and which are relegated to an executive inquiry is a direct violation of Article 14. Such pick-and-choose governance introduces a level of whim and caprice that is antithetical to equality before the law. In the eyes of this Court, a procedure that is not followed in the manner prescribed by law is no procedure at all; it is an act of administrative lawlessness”.

The Bench accordingly directed the Principal District Judge of the concerned district and the Principal Secretary, Department of Home, Prison & Disaster Management to “enquire into and submit a compliance report before this Court within six months of the date of this judgment, explaining the failure to have at least 262 cases of custodial deaths enquired into by the judicial magistrates, as required by the statutory mandate, and instead to have them enquired into only by the Executive Magistrates; to identify the specific officers responsible for such lapses; and to show cause why this Court should not recommend the initiation of departmental inquiries against the said officers”.

Advocate Md. Shadab Ansari appeared for the petitioner. Gaurav Raj, A.C. to A.A.G.-II, appeared for the State respondents.

Background

The public interest litigation was instituted on the basis of information disclosed by the Department of Home, Prison and Disaster Management, Government of Jharkhand, in response to a starred question before the State Legislative Assembly concerning custodial deaths between 2019 and 2021.

The petitioner alleged that despite the mandatory statutory requirement under Section 176(1-A) CrPC, the State authorities had routinely deputed Executive Magistrates to conduct inquiries into custodial deaths instead of Judicial Magistrates.

During the proceedings, the State filed a supplementary counter-affidavit disclosing statistical data relating to custodial deaths from 2018 onwards. According to the affidavit, 427 custodial deaths were reported during the relevant period. While inquiries were claimed to have been conducted in all cases, the affidavit disclosed that 262 inquiries were conducted by Executive Magistrates and only 225 by Judicial Magistrates.

The Court noted that the figures furnished by the State were “mathematically irreconcilable”, as the total number of inquiries disclosed exceeded the total number of custodial deaths.

Court’s Observation

The High Court delivered an extensive analysis on custodial deaths, constitutional safeguards, institutional accountability, and the mandatory nature of judicial inquiries under Section 176(1-A) CrPC and Section 196(2) BNSS. The Bench described the State’s disclosures regarding custodial deaths and inquiries as “deeply distressing and shocking”, observing that the data revealed “a situation that strikes at the very root of the Rule of Law.”

At the outset, the Court emphasised that the right to life under Article 21 extends equally to persons in police and judicial custody. The Bench observed that custodial violence “is an affront to the very essence of justice” and held that the State’s obligations intensify once a citizen is taken into custody.

Referring to In Re: Inhuman Conditions in 1382 Prisons (2017), the Court quoted the Supreme Court’s observation: “There must be a greater degree of sensitivity among those in authority with regard to persons in custody… the dignity of the individual is not a plaything for those in authority.”

The Court also relied upon Nilabati Behera v. State of Orissa (1993), reiterating: “The precious right guaranteed by Article 21 of the Constitution of India cannot be denied to convicts, under trials or other prisoners in custody, except according to procedure established by law.”

The Bench highlighted that the Supreme Court had described the State’s responsibility towards persons in custody in absolute terms. The Court reproduced the observation: “The duty of care on the part of the State is strict and admits of no exceptions.”

The High Court then traced the legislative history behind Section 176(1-A) CrPC. Referring to the 152nd Report of the Law Commission of India (1994), the Court noted that executive-led inquiries into custodial deaths had failed to inspire public confidence because the investigating authority and the persons under scrutiny belonged to the same executive hierarchy.

The Bench quoted the Law Commission’s observation that the “desideratum” of impartiality was “of the highest importance” and that existing executive inquiries had failed to command public confidence.

The Court also referred to State of M.P. v. Shyam Sunder Trivedi (1995), where the Supreme Court had described custodial deaths as “the worst kind of crimes in civilised society, governed by the rule of law” and observed that “Men in khaki are not above the law.”

The Bench observed that Parliament inserted Section 176(1-A) CrPC through the 2005 amendment precisely to remove custodial death inquiries from executive control and place them under independent judicial oversight.

The Court held that the language of Section 176(1-A) leaves no room for discretion. The Bench observed: “The legislative use of the term ‘shall’ in this context is an unequivocal command, signalling that the requirement is mandatory, non-discretionary, and admits of no executive substitution.”

The Court further observed that once Parliament vested the inquiry mechanism exclusively in Judicial Magistrates, executive inquiries could never be treated as substitutes. The Bench held: “By vesting this power exclusively in the Judicial Branch, the legislature has effectively declared that, in matters of custodial deaths, the fact-finding process must be independent and insulated from the police department's hierarchical structure.”

Referring to Section 196(2) BNSS and Section 3(1) BNSS, the Court clarified that the expression “Magistrate” in the provision must necessarily mean a Judicial Magistrate and not an Executive Magistrate.

The Bench also relied upon NHRC proceedings dated September 4, 2020, which clarified that judicial inquiry under Section 176(1-A) is a “condition precedent” for determining whether a custodial death resulted from torture, negligence or natural causes.

Examining the State’s affidavit, the Court noted that out of 427 custodial deaths disclosed since 2018, inquiries in 262 cases were conducted by Executive Magistrates. The Bench described the situation as “systemic non-compliance” and held that the State had shown “utter disregard for legal procedures”.

The Court observed: “Enquiries through the executive magistrates, perhaps hand-picked, were sought to be passed off as substitutes for statutory compliance.”

The Bench further observed that the State’s figures themselves were contradictory and mathematically irreconcilable, thereby casting doubt on the State’s diligence and veracity in maintaining custodial death records.

The Court held that there was no disclosed criterion explaining how the Executive selected which custodial death cases would go before Judicial Magistrates and which would be handled by Executive Magistrates. The Bench observed: “The law does not provide the State with the luxury of choice, nor does it allow the Executive to ‘pick and choose’ its preferred forum for an inquiry into its own alleged transgressions.”

The Court held that permitting executive inquiries to stand in place of judicial inquiries would validate a process that was “void ab initio”.

The Bench also warned that systemic disregard of mandatory safeguards in custodial death cases threatened public confidence in the justice delivery system itself. The Court observed: “If such systemic defiance is ignored, the entire legal system will lose the public confidence it commands, which could fracture the very foundation of our society.”

The Court emphasised that the judiciary itself also carried institutional responsibility in ensuring meaningful inquiries into custodial deaths. The Bench observed that many inquiry reports placed before the Court lacked sensitivity, clarity and adherence to NHRC guidelines and appeared more focused on “having the matter done away with rather than an attempt to find the truth of the circumstances of the custodial death.”

On compensation, the Court reiterated that compensation for custodial deaths is a constitutional remedy under public law and not merely a civil claim. Referring to Rudul Sah (1983), Nilabati Behera (1993) and D.K. Basu (1997), the Court observed that the State is vicariously liable for violations of fundamental rights committed by its officials and cannot invoke sovereign immunity in such cases.

Finally, the Court observed that the directions issued in the judgment were necessary to ensure that “the Rule of Law is never compromised” and that the Executive and Judiciary function within their constitutionally assigned spheres while safeguarding the rights of citizens.

Conclusion

The High Court declared that inquiries under Section 176(1-A) CrPC and Section 196(2) BNSS must mandatorily be conducted by Judicial Magistrates and that inquiries conducted by Executive Magistrates cannot operate as substitutes.

The Court directed the Principal District Judges and the Principal Secretary, Department of Home, Prison and Disaster Management, to submit compliance reports within six months explaining the failure to conduct judicial inquiries in at least 262 custodial death cases, identifying responsible officers and explaining why departmental proceedings should not be initiated against them.

The Court also directed de novo judicial inquiries in all custodial death cases from 2018 onwards, where inquiries had been conducted by Executive Magistrates.

Further directions were issued for the circulation of mandatory compliance circulars, preparation of SOPs by the Jharkhand Judicial Academy, institutional coordination mechanisms, mandatory reporting to NHRC and State Human Rights Commission, and consideration of compensation by District Victim Compensation Committees in cases disclosing custodial violence or negligence.

Cause Title: Md. Mumtaz Ansari v. State of Jharkhand & Ors. (Neutral Citation: 2026:JHHC:14765-DB)

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