Justice Kauser Edappagath, Kerala High Court
Police Officer Does Not Act In Discharge Of His Official Duty When He Inflicts Custodial Torture On Arrestee: Kerala High Court
|The Kerala High Court said that custodial torture flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity.
The Kerala High Court observed that a police officer does not act in discharge of his official duty when he inflicts custodial torture on an arrestee.
The Court observed thus in a Criminal Revision Petition filed by the Complainant/victim who alleged offences under Sections 166, 211, 220, 323, 324, 330, 331, 341, 342, 348, and 354 read with Section 34 of the Indian Penal Code, 1860 (IPC) and Section 3(1)(ix)(x) and (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (SC/ST Act) against the accused persons.
A Single Bench of Justice Kauser Edappagath remarked, “The act of custodial torture inflicted by a police officer without justification on an arrestee cannot be shielded under the protective mantle of Section 197 of Cr.P.C. It can never be said that a police officer acts or purports to act in discharge of his official duty when he inflicts custodial torture on an arrestee. Nor can it be said that inflicting unjustified custodial torture is reasonably and intrinsically connected with the discharge of, or purported discharge of, the official duty of the police officer concerned to avail the protection of Section 197 of Cr.P.C.”
The Bench said that custodial torture flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity.
Advocate V. Sajith Kumar appeared on behalf of the Petitioner while Senior Public Prosecutor (SPP) E.C. Bineesh and Advocate A.S. Shammy Raj appeared on behalf of the Respondents.
Brief Facts
The case arose from a private complaint filed by the Petitioner-victim before the Judicial First-Class Magistrate against the Respondents (accused persons). The accused Nos.1 and 2 were husband and wife, accused Nos.3 and 4 were their daughter and son-in-law respectively, and the accused No.5 was their close companion. Accused No.6 was the Sub Inspector and accused Nos.7 to 9 were the Women Police Constables at Fort Police Station, Thiruvananthapuram. As per the allegations in the said complaint, the Complainant (Petitioner) belonged to the Hindu Thandan community and the accused belonged to the forward communities. The Petitioner-victim was a housemaid in the residence of accused nos. 1-4 and in July 2006, when she went there to attend the job, she was told by the said accused that about nine sovereigns of gold were missing from their house. She was allegedly questioned by them with the suspicion that she had stolen the items.
At that time, her marriage was fixed and she was threatened stating that she should give back the gold items. It was alleged that though she asserted her innocence, without heeding the same, she was abused, questioned and humiliated by calling her caste name. She was also intimidated that if the place of concealment of the stolen items was not disclosed, she would be handed over to the police. It was further alleged that even after attending to all the work of the day, she was not given food or water and was confined in the house without being permitted to go back home. Allegedly, a false complaint was given to the police, following which the accused Nos.7, 8 and 9 i.e., the women police constables reached the house and started interrogating the victim. They insisted that she should confess the guilt and later she was taken to the police station. It was also alleged that they took her to the inner room and cruelly manhandled her, beat her with a cane and a stick.
Allegedly, her head was hit against the wall and when she cried aloud, her neck was pressed and stamped on the abdomen. Entreaties made by her mother, who was standing outside, were neglected. She was allegedly dragged across the floor and caned all over the body and the beating continued from 5 p.m. to 8 p.m. During that time, the accused no. 1 came there and informed that the ornaments were available in their house itself and thereafter, the victim was let off. She was unable even to sit erect when she left the police station and the constables told her that if the incident was disclosed to anyone, she would not be allowed to live peacefully. The Trial Court held that the said act by the accused police constables was done in discharge of their official duty. Challenging this, the victim was before the High Court.
Reasoning
The High Court in view of the above facts, noted, “Thus, the law is well settled that as per Section 197 of Cr.P.C., there is a bar for any Court to take cognizance of any offence (except those offences mentioned in the Explanation to sub-section (1) of Section 197) against a public servant unless sanction is obtained from the appropriate authority if the offence, alleged to have been committed, was in discharge of the official duty. However, the said bar is not absolute. The protection of Section 197 is available only when the alleged act done by the public servant is reasonably and intrinsically connected with the discharge of, or purported discharge of, his official duty. The protection would not extend to acts that are manifestly beyond the scope of his official duty or wholly unconnected thereto. In other words, to get the protection, the act must fall within the scope and range of the official duties of the public servant concerned.”
The Court added that, however, if the public servant exceeded the scope of his authority or acted improperly while discharging his duty, but there is a reasonable connection between the act and the performance of the official duty, it will not deprive him of protection under Section 197 CrPC.
“There cannot be any universal rule to determine whether there is a reasonable connection between the act done and the official duty. It depends upon the facts and circumstances of each case. … Article 21 of the Constitution of India guarantees the right to life and personal liberty to every individual. This fundamental right includes protection from torture, inhuman or degrading treatment, and arbitrary detention. There is a built-in guarantee against torture or assault by the state or its functionaries”, it further said.
The Court remarked that when the cops who are meant to protect and uphold the law become its transgressors, it is a curious case of the fence itself eating the crops.
“These acts of the accused Nos.5 to 8 could have no reasonable connection with their official duties, and the pretended or fanciful claim that they committed these acts in the course of performance of their official duties cannot be entertained. Their official duties did not authorise them to assault or abuse the petitioner in custody, when there is nothing on record to show that there was any obstruction or resistance from her”, it also observed.
Conclusion
The Court was of the view that there may be circumstances which may justify the use of force by the police while discharging their official duty but that is not the case here.
“The custodial assault as alleged by the petitioner in detail in her complaint and sworn statement, can never be justified under the shelter of performance of official duty. … The courts must not lose sight of the fact that custodial torture is perhaps one of the worst kinds of crime in a civilised society, governed by the rule of law and poses a serious threat to an orderly civilised society”, it emphasised.
Moreover, the Court said that police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnish the image of any civilised nation and encourage the men in ‘Khaki’ to consider themselves to be above the law and sometimes even to become law unto themselves.
“Unless stern measures are taken to check the malady, the foundations of the criminal justice delivery system would be shaken. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve; otherwise, the common man may lose faith in the judiciary itself”, it concluded.
Accordingly, the High Court partly allowed the Petition, set aside the Trial Court’s Order to the extent that it discharged accused nos. 5-8, and directed it to frame charge against them.
Cause Title- Sudha v. State of Kerala & Ors. (Neutral Citation: 2025:KER:42756)
Appearance:
Petitioner: Advocates V. Sajith Kumar, Josie Mathew, Neena J. Kalyan, and Ammu M.
Respondents: SPP E.C. Bineesh and Advocate A.S. Shammy Raj.