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CUSTODIAL INTERROGATION: LAW, POLICY
AND IMPLEMENTATION
Dissertation submitted in part fulfilment for the requirement of the
Degree of
LL. M.
Submitted by Supervised by
AJAY RAJ SINGH (PROF) DR. SRIKRISHNA DEVA RAO
National Law University
Delhi (India)
2014
i
DECLARATION BY THE CANDIDATE
I hereby declare that the dissertation entitled “Custodial Interrogation: Law, Policy
and Implementation” submitted at National Law University, Delhi is the outcome
of my own work carried out under the supervision of Prof.(Dr) Srikrishna Deva
Rao, Professor Criminal Law, Registrar, National Law University, Delhi.
I further declare that to the best of my knowledge the dissertation does not contain
any part of work, which has not been submitted for the award of any degree either in
this University or any other institutions without proper citation.
I, Ajay Raj Singh, followed the research guidelines of the University/ applied the
turnitin- Anti Plagrism Software.
Ajay Raj Singh, (03/LLM/12)
Place: National Law University, Delhi
Date:
ii
CERTIFICATE OF SUPERVISOR
This is to certify that the work reported in the LL.M. dissertation entitled “Custodial
Interrogation: Law, Policy and Implementation”, submitted by Ajay Raj Singh at
National Law University, Delhi is a bonafide record of his / her original work
carried out under my supervision. To the best of my knowledge and belief, the
dissertation: (i) embodied the work of the candidate himself/herself; (ii) has duly been
completed; and (iii) is up to the standard both in respect of contents and language for
being referred to the examiner.
Prof.(Dr) Srikrishna Deva Rao,
Professor Criminal Law,
Registrar, National Law University, Delhi.
Place
Date
iii
ACKNOWLEDGEMENTS
I am deeply indebted to Hon'ble Prof. (Dr) Srikrishna Deva Rao, Professor
Criminal Law, Registrar, National Law University, Delhi , who invested his very
precious time to guide and supervise this work and charm out the best from me. Only
because of his valuable guidance, I could take this subject and do it with full
dedication. His expectation for the quality of work acted as the major driving force
behind writing this dissertation.
I pay my sincere regards towards Hon‟ble Prof. (Dr) Ranbir Singh, Vice-Chancellor
of National Law University, Delhi to provide me a healthy environment in the
University Campus for my study.
I am also grateful to all the staff at the T.P.S Chawla Library especially Deputy
Librarian Dr (Mrs) Priya Rai because, without her assistance I could not have
completed this work in time.
I offer my sincere thanks to Mr. Raj Singh, Asst. Commissioner of Police, Delhi
(Recruitment Cell) who helped me to seek all the necessary permissions required to
interview the concerned S.H.Os and I.Os in the South Delhi for the purpose of the
Empirical study.
I wish to offer my sincere gratitude to all of my classmates in LL.M. second year for
their kind support, encouragement and help as and when required.
Finally, I am grateful to my parents, whose unconditional support and teachings
enabled me to take up and complete this research, and also my colleagues who
happily gave up their claim to the time which would have been theirs in order that this
dissertation would be successfully completed.
AJAY RAJ SINGH
Place: New Delhi
Date: May, 2014
iv
TABLE OF CASES
John Murray v. U.K, 22 E.H.R.R. 29 (1996)
Saunders v. U.K, 23 E.H.R.R. 313 (1996)
Shannon v. U.K 03 APPLN. 6563 (2005)
Brown v. Mississippi, 297 U.S. 278 (1936)
Ohio v. Reiner, 532 US 17 (2001)
Magee v. United Kingdom, 31 E.H.R.R. 35 (2001)
Averill v. United Kingdom, 31 E.H.R.R. 36 (2001)
Brennan v. United Kingdom, 34 .E.H.R.R. 1 (2002)
Salduz v. Turkey, 49 E.H.R.R. 19 (2009)
HM. Advocate v. Mclean (Duncan), 1 HCJAC 97 (2009)
Cadder (Peter) v. HM. Advocate, UKSC 43 (2010)
Salduz v. Turkey, 49 E.H.R.R. 19 (2009)
Cadder (Peter) v. HM. Advocate (2010) UKSC 43
Chambers v. Florida, 309 U.S. 227 (1940)
Ashcraft v. Tennessee, 322 U.S. 143 (1944)
Haynes v. Washington, 373 U.S. 503 (1963)
Miranda v. Arizona 384 U.S. 436 (1966)
D.K Basu v. State of West Bengal, AIR 1987 SC 592
Notel v. UOI & Ors, AIR 2000 ACJ 786
Assam Chah Mazdur Sangh v. State of Assam & Ors, AIR 1998 GLT 293
State of Kerala v. K.K. Sankaran Nair, AIR 1960 KERHC 392
Pyare Lal Bhargave v. State of Rajasthan, AIR 1963 SC 1094
Dalbir Singh v. State of U.P. AIR 2009 SC 1674
v
Nandini satpathy v. P.L Dani, AIR 1978 SC 1025
Maneka Gandhi v. UOI, AIR 1978 SC 552
Kali Ram v. State of U.P, AIR 1973 SC 573
Lord Mustill, R. v. Director of Serious Fraud Office (1992)
vi
LIST OF TABLES
Table
Number
Caption Page No.
TABLES OF POLICE OFFICERS
1 Years of serving in the police 44
2 Time spent at the police station 45
3 Current educational qualifications 46
4 Knowledge of D.K. Basu guidelines 47
5 Stress level in police job 48
6 Last received refresher training 49
7 Number of officers required for arrest 50
8 Huddles faced on the part of arrestee 51
9 Duration of interrogation period 52
10 Facilities provided during interrogation 53
11 Ideal punishment for rape offenders 54
TABLES FOR POLICE ARRESTEES
1. Age at the time of the arrest 55
2. Number of officers present during arrest 56
3. Visibility of identification of the officer 57
4. Information regarding grounds of arrest 58
5. Preparation of memorandum by police officer 59
6. Information to friend or arrestee 60
7. Information regarding right to have legal help 61
8. Information regarding right to remain silent 62
9. Time spent in police custody 63
10. Time spent in interrogation process 64
11. Physical force used against the arrestee 65
vii
12. Condition of the interrogation room 66
13. Level of stress during interrogation 67
14. Self-incriminatory statements take 68
15. Duration of production before court 69
16. Awareness regarding rights of the suspect 70
TABLE OF CONTENTS
TITLE PAGE
NO.
DECLARATION i
SUPERVISOR‟S CERTIFICATE ii
ACKNOWLEDGEMENTS iii
LIST OF CASES iv-v
LIST OF TABLES vi-vii
CHAPTER 1
INTRODUCTION
1-27
1.1 CUSTODIAL VIOLENCE
1.2 CUSTODIAL GUIDELINES
1.2.1 MIRANDA CASE
1.2.2 NANDINI CASE: TRANSPLANTING MIRANDA ON INDIAN SOIL
1.2.3 SELVI CASE: THE CONSTITUTIONALITY OF NARCOANALYSIS
1.2.4 D.K BASU CASE: EXHAUSTIVE GUIDELINES FOR ARREST AND
DETENTION
3
4
5
9
11
12
1.3 LEGAL TREND IN OTHER COUNTRIES
1.4 EFFECT OF CUSTODIAL GUIDELINES
1.5 REVIEW OF THE LITERATURE
1.6 STATEMENT OF PROBLEM
1.7 RESEARCH OBJECTIVES
1.8 HYPOTHESIS
1.9 RESEARCH DESIGN
1.10 SAMPLE & LOCALE OF THE STUDY
14
20
21
25
26
26
26
27
CHAPTER 2
POLICE ETHICS 28-35
2.1 LAW AND ETHICS
2.2 THREE MODELS OF POLICING
2.2.1 FRAGMENTED MODEL OF POLICING
2.2.2 CENTRALIZED MODEL OF POLICING
2.2.3 INTEGRATED MODEL OF POLICING
30
34
34
35
35
CHAPTER 3
CUSTODIAL INTERROGATION: LAW AND POLICY
(INDIAN AND INTERNATIONAL PERSPECTIVE)
36-45
3.1 CUSTODIAL DIMENSIONS AND INTERNATIONAL
SAFEGUARDS
3.2 UNITED KINGDOM
3.3 UNITED STATES
3.4 INDIA
36
39
41
42
CHAPTER 4
EMPIRICAL SURVEY ON VIOLATION OF RIGHTS OF
THE SUSPECT BY POLICE INTERROGATION
STRATEGIES
44-73
4.1 FREQUENCY TABLES OF POLICE OFFICERS
4.2 FREQUENCY TABLE TABLES FOR POLICE ARRESTEES
4.3 MAJOR FINDINGS OF THE STUDY
44
55
71
CHAPTER 5
VERIFICATION OF THE HYPOTHESIS 74-78
CHAPTER 6
CONCLUSION AND RECOMMENDATIONS 79-81
BIBLIOGRAPHY 82-86
ARTICLES
BOOKS
CONVENTIONS
REPORTS
STATUTES
WEBSITE
ANNEXURE 1
ANNEXURE 2
1
CHAPTER 1
INTRODUCTION
“...We are disposed to read 'compelled testimony' as evidence procured
not merely by physical threats or violence but by psychic torture,
atmospheric pressure, environmental coercion, tiring interrogative
prolixity, overbearing and intimidatory methods and the like-not legal
penalty for violation...”
- Justice Krishna Iyer
Justice Krishna Iyer has delivered this judgement in Nandini Satpathy case1, where he
has criticized the role of police during the process of interrogation. It was a landmark
judgement defining the role of the police during the pre-trial stage.
The responsibilities of a law enforcement agency during the pre-trial process are
similar to that of a judicial officer during the trial process. So, we can say that the
police has a very crucial role to play during the process of pre-trial in a Criminal
Justice System.
A criminal justice system is the combination of the government institutions which
aims to control, deterred and mitigate the crime.2 The role of criminal justice system
varies from country to county. In United States, the criminal justice system has taken
the challenge to eradicate the crime on one hand and to preserve the rights of the
citizens on other hand.3 In United Kingdom, the criminal justice system aims to
reduce the crime by bringing more offences to justice and to raise public confidence
that the system is fair and will deliver for the law-abiding citizens.4 The criminal
justice system follow „due process model‟ by protecting the rights of the citizens as
well as providing social control by mitigating crime.
1 Nandini Satpathy v. P.L Dani AIR 1978 SC 1028
2 Walker, Samuel, Origins of the Contemporary Criminal Justice Paradigm: The American Bar
Foundation Survey, 9(1) Justice Quarterly 47, (1992). 3 PRESIDENT‟S COMMISSION ON LAW ENFORCEMENT AND ADMINISTRATION OF
JUSTICE (1967). 4 Sandra, UNDERSTANDING CRIME: CURRENT THEORETICAL DEBATES (2007)
2
Indian criminal justice system is regulated by the cardinal principle of „Presumption
of Innocence‟ i.e. the suspect is deemed to presumed innocent unless his guilt is not
proved beyond the reasonable doubts.5 In order to give effect to this cardinal principle
the criminal justice system has to work accordingly. The constitution of India
provides a number of rights to the suspects which are complimentary to the cardinal
principle. So, it is the duty of the law enforcement agencies to take measures to see
that the rights of the suspects are safe guarded.
The state is also an important functionary of the criminal justice system. Police plays
an important role to seek the ends of the justice. The main objective of any law
enforcement agency is to provide a better custodial justice during the process of
interrogation of the accused of the suspect.6
The dictionary meaning of the word „custody‟ is care, guardianship and safekeeping.
The police custody commences whenever an accused or a suspect comes in the
domain of the police either through a formal arrest or without it. The police limit the
freedom of movement of the accused during the period of custody.7
The word police custody can be applicable to all those situations where the freedom
of movement of the accused or the suspect is restricted by the law enforcement
agency.8 While, a custodial crime can be classified as the custodial violence of any
category and of any degree i.e. by illegal detention, illegal arrest, torture, death in
police custody etc, all those situations where an illegal violation of the individual‟s
rights is committed during the police process can be categorised as custodial crimes.9
In order to curtail the liberty and freedom of movement of the individual the state
shall follow the process that is established by law.10
The law enforcement agencies
need to follow a proper legal process in order to curtail the freedom and liberties of
the individual. When an arrest is to be made, the police shall inform the grounds of
the arrest to the arrestee as soon as possible and he shall not be denied of his right to
consult his legal counsel as well.11
5 Sec. 101, Indian Evidence Act. 1873.
6 John L. Cooper, A STUDY IN THE POLICING OF AMERICA, 4 (2001)
7 Rathin Bandyopadhyay, HUMAN RIGHTS OF THE NON-CITIZEN: LAW AND REALITY, 377(2007)
8 Jill Nelson, POLICE BRUTALITY: AN ANTHOLOGY (2001)
9 Id.
10 Art. 21, THE CONSTITUTION OF INDIA, 1950.
11 Art. 22(1), THE CONSTITUTION OF INDIA, 1950.
3
It is also important that an arrested person shall be produced before the nearest
magistrate within the 24 hours of his arrest i.e. the primary time period of the police
custody shall not exceed 24 hours without the order of the magistrate.12
During the
custody the police officer shall also not force the arrestee or the suspect to give self
incriminatory statements.13
The procedure to be followed during the interrogation
process in the police custody shall include.14
The Prohibition from any kind of
physical or mental torture or degrading treatment, the interrogation shall be
conducted in a clearly identifiable place that is notified for the purpose of government
use. The place of interrogation shall be accessible to the friends and relatives of the
arrested person and they shall be informed about the arrest of the person as soon as
possible, the arrested person shall be allowed to meet his legal counsel.
1.1 CUSTODIAL VIOLENCE
Every year a large number of cases of custodial violence are ported to the National
Human Right Commission of India. NHRC is an public autonomous body which was
constituted on 12th
of October 1993 under the Protection Of Human Rights Ordinance
Of 1993.15
It derived its statutory powers through Protection of Human Right Act of 1993. Its
main function is to protect and promote Human Rights. Since few years a large
number of cases regarding custodial violence, illegal arrest, unlawful detention, fake
encounters have been reported to NHRC.16
The National Human Rights Commission Reports of the years 2007-2010 reveals the
nature and the categories of reported cases which were disposed off by the NHRC
during the yeas 2007–2010.17
12
Art. 22(2), THE CONSTITUTION OF INDIA, 1950 13
Art. 20(3), THE CONSTITUTION OF INDIA, 1950. 14
Jill Nelson, POLICE BRUTALITY: AN ANTHOLOGY (2001) 15
National Human Rights Commission of India from
<http://en.wikipedia.org/wiki/National_Human_Rights_Commission_of_India> retrieved on 12th
July
at 16:20 hours. 16
Id. 17
NATIONAL HUMAN RIGHTS COMMISSION ANNUAL REPORTS from < nhrc.nic.in> retrieved on 12th
July at 16:32 hours.
4
YEAR CASES
Custodial
Violence Illegal Arrest
Unlawful
Detention
Fake
Encounters
2007-2008 2 318 675 57
2008-2009 11 1027 1500 8
2009-2010 10 639 697 47
Total 23 1984 2872 112
Source: annual reports of National Human Right Commission 2007-2010
It is clearly visible from the above data that there was a highest number of unlawful
detention cases reported from year 2007 to 2010, while the figure of illegal arrests
during the same time period was the second highest in number with 1984 cases
reported. There were considerable number of fake encounters recorded during the
time period of 2007-2010 which was 112, while a number of 23 cases of custodial
violence were reported to the NHRC during the years 2007-1010.
The highest number of custodial violence took place in the year 2008-2009, while the
highest number of illegal arrest and unlawful detention also took place in the similar
year. In the year 2007-2008 highest number of fake encounters were reported with the
commission.
It can be clearly enumerated from the above data that police has completely failed to
obey the statutory law of the state which is an integral part of the „due process‟ which
need to be followed by the police. The police has failed to comply with the guidelines
provided by the Supreme Court in various landmark judgements.
1.2 CUSTODIAL GUIDELINES
Supreme court has decided two important cases regarding custodial conduct and
arresting guidelines, these two cases were Nandini Satpathy case (1978) and D.K
Basu case.
In both the cases the Supreme Court of India has laid very exhaustive guidelines
regarding the custodial conduct of the police. The Nandini case focused upon the
procedure to be used during the process of the police interrogation i.e. safeguarding
the right against self incrimination, providing the legal help. While, D.K. Basu case
5
provided the guidelines for the police which need to be followed while making arrest
and detention.
Both the judgements provided directions that need to be followed by the police during
the pre-trial process. D.K. Basu case was derived its guidelines from the Police And
Criminal Evidence Act, 1984 of the United Kingdom. The Nandini case was the
implementation of the Miranda case (United States, 1966) on the Indian soil. The
regulation of the police conduct during the interrogation was discussed for the first
time by the United States Supreme Court in Miranda Case.
1.2.1 MIRANDA CASE
In 1966, in USA a number of petitioners filled a writ of Certiorari against the torture
and brutal violence they faced during the interrogation procedure conducted by the
police officers. In this writ of Miranda (1966),18
the petitioners pleaded on these
grounds that they were questioned by police officers and detectives in an isolated
room that was cut them off from the outside world, the petitioner was not told about
their rights before starting the interrogation process, the questioning elicited oral
admissions and he was made to sign the confession forcefully.
ISSUES
Miranda case was decided with 3 other consolidated cases: Westover v. United
States,19
Vignera v. New York,20
California v. Stewart.21
Major issues in the case
were as follows: whether the statements obtained from a police suspect during the
process of the custodial interrogation can be used against him during the criminal trial
or not and whether the procedure against the self incrimination of the accused,
mentioned under fifth amendment, shall be followed by the police or not.
18
Miranda v. Arizona 384 U.S. 436 (1966),
Miranda was arrested from his home by the police and taken to the police station, in the police station
he was identified by the complainant. He was then continuously interrogated for two hours by two
police officers, after some time his written and signed confession letter was obtained by the police.
During the trial his confession letter was presented to the jury. During the trial Miranda was found
guilty of rape and kidnapping and he was sentenced for 20-30 years. On appeal the Supreme Court
held that Miranda‟s constitutional rights were not violated while obtaining the confession. 19
86 S.Ct. 1602 (1966) 20
694 U.S 1966 21
10 ALR. 974 (1966)
6
MAJORITY JUDGEMENT
US Supreme Court passed the judgement by the ratio of 5:4 judges. The majority of
the judges decided that the prosecution shall not use statements framed from the
questioning initiated by the interrogation officers after the person has been taken into
custody and the police shall follow procedural safeguards laid down in the fifth
amendment.22
It says, that the atmosphere of the interrogation room should not be
intimidating that it guides the accused to give self-incriminatory statements. The
custodial surroundings shall be made comfortable for the accused so that no
psychological pressure could affect his statement,23
the accused shall have the „right
to remain silent unless he choose to speak by his own will‟ during the process of
interrogation, as mentioned in the 14th
amendment,24
the process of police
interrogation shall be restructured in accordance to the security of privileges provided
to the suspect.25
The majority of the bench also laid the guidelines to be followed by the interrogation
officer during the process of the interrogation. Before the commencement of the
interrogation process, the police should clarify certain thing to the suspect:26
a) he should be informed about right to remain silent,
b) he shall be informed that if he say anything that could be used against him in the
court
c) he should be informed about his right to consult a lawyer,
d) he should have a lawyer with him during interrogation,
e) if the suspect is an indigent person a lawyer shall be appointed by the prosecution
to represent him.
The court also held that if the suspect wishes to use his „right to remain silent‟ then
interrogation must seize and if he states that he wants to meet his lawyer then the
questioning shall be seized till the appearance of the legal advisor.27
22
Id. 384 U.S. 444-491 23
Id.384 U.S. 445-458 24
Id. 384 U.S. 458-465 25
Id. 384 U.S. 465-466 26
Id. 384 U.S. 467-473 27
Id. 384 U.S. 473-474
7
In a case where an interrogation is conducted without the presence of an attorney and
the statement is taken from the suspect, the burden of proof will rest upon the
prosecution to prove that the defendant knowingly waived his right to call his
council.28
In a case where the interrogation process has already started and the suspect
has not waived his privilege to remain silent, he can invoke his right to remain silent
at any point of time during the whole process.29
It was also mentioned by the Supreme Court of the U.S. that the limitation imposed of
the interrogation process are required only for the protection of the individual‟s
constitutional rights and they should not put any undue interference with the proper
system of law enforcement.30
Therefore, it is believed that the law enforcement agencies shall devise a mechanism,
which should, on one hand be in accordance to the rights of the suspect, and on the
other hand, the procedure should not be contrary to the proper system of law
enforcement.
It was held by the court that in each of the cases the statements of the accused were
obtained by the use of improper interrogation techniques and the circumstances which
did not meet the constitutional standards provided for the protection of the rights of
the accused.31
The conviction of the accused was reverted by the Supreme court but the state of
Arizona retried him, Miranda‟s confession was not introduced into evidence. Still,
Miranda was again convicted and sentenced to minimum 20 years.
KEY INGREDIENTS AND MIRANDA WARNING
The core holding of the case is that right against self incrimination shall not protected
during the process of the investigation. The safety of the right against self-
incrimination shall be ensured by certain warnings, which are known as MIRANDA
WARNINGS, the suspect shall be informed about his right to have a legal council.
While the suspect may also waive these rights knowingly and intelligently. The court
also enumerated certain key elements in its decision:
28
Id. 384 U.S. 475 29
Id. 384 U.S. 475-476 30
Id. 384 U.S. 479-491 31
Id. 348 U.S. 491-499
8
Requirement of the custodial interrogation: the Miranda warnings shall be given
only in the situation of the custodial interrogation, when the suspect is in the custody
of the police or he is deprived of his freedom of action in any way.
Waiver shall be voluntary: it is the duty of the police officer to inform the suspect
of his rights, while the interrogation cannot take place until the suspect do not waive
all the available rights. Such a waiver shall be voluntary and after an intelligent
application of the mind. The police shall not presume a waiver simply from the
silence of the suspect.
Suspect‟s right to end the questioning: the suspect has right to cut off the
questioning process at any stage of the interrogation. If the suspect wishes to cut off
the questioning than the interrogation procedure must seize.
No adverse use of right to remain silent: if the suspect chose to remain silent and
not to answer any question then the prosecution shall not derive any negative
inference from his/her silence.
The Miranda case lead to the establishment of the certain rights of the accused which
were already implicit in the 5th
Amendment of the U.S. constitution, they are created
by the whip of the judicial wisdom and they are the integral part of the criminal
procedure to be followed by the investigation agencies during the process of the
interrogation.
In India, after the freedom, the constitution makers did not included the basic rights
required for the constitutionalization of the police process and the criminal process, in
the constitution.32
These rights were right to speedy trial, right against unlawful
search and seizure, right against torture etc. The police commission also failed to
recommend structural changes to the government needed for the adapting the police
process and the process to freedom and democracy.33
While the judiciary played a
crucial role through the landmark judgements an established specific guidelines for
the same purpose.
32
Mohd. Ghouse, The Pre-Trial Criminal Process And The Supreme Court, 13(1) Indian Bar Review (1986) 33
I.d
9
1.2.2 NANDINI CASE: TRANSPLANTING MIRANDA ON INDIAN SOIL
In Nandini satpathy v. P.L Dani (1978),34
a number of issues were raised regarding
the unethical conduct of the police. The appellant pleaded in Supreme Court that she
was not only forced to give self-incriminatory evidences but she was also not
informed regarding the grounds of the arrest. She also pleaded that she was not
provided a legal advisor during the process of interrogation.
ISSUES
Is the accused of any offence entitled to the Constitutional Right mentioned under
Art. 20(3) ?
Does the protection under Art. 20(3) only restricts to the questions asked by the
police regarding the specific accusation or does it also extends to all the questions
asked in the interrogation process regardless of his accusation?
Does the protection provided under Art. 20(3) shield the accused only in the court or
does this protection also extends to the stage of the police investigation?
What is the ambit of the statement: „compelled to be a witness against himself‟
mentioned under Art. 20(3) of the Indian Constitution?
Does the word „compulsion‟ involve physical compulsion only or does it also covers
the psychic coercion?
Does „being witness against oneself‟ proves the guilt of the accused?
What are the parameters of Sec 161(2) of the Code of Criminal Procedure?
Does the word „any person‟ mentioned under Section 161(2) of the Code of Criminal
Procedure includes the accused also or it just includes the witness?
34
Air 1978 SC 1025
Deputy superintendent of the police, Cuttack filed a complained u/s 179 of the Indian Penal Code
against the accused ( former chief minister of Orissa). Accused was summoned by the magistrate, later,
the accused moved to the High Court, filing a petition under Art. 226 of the Constitution, contending
that complaint did not disclose any offence. Charge against the accused was regarding her failure to
answer the questions asked by the police officer during the interrogation by the police (Sec. 179 of
IPC). It was contended by the accused that such allegations violates her Constitutional Right
mentioned under Art. 20(3) and the Immunity guaranteed to her under Sec. 161(2) of the Code of
Criminal Procedure.
10
Under what conditions an answer will be considered as the self-incriminatory for the
accused?
Does the „mens rea‟ is an important component of the offence mentioned under
Section 179 of the Indian Penal Code, if so, then what is its nature?
What shall be the demarcation for the boundaries of „benefit of doubt‟ in the trial
under section 161(2) of the Code Of Criminal Procedure and 179 of the Indian Penal
Code?
The court gave a very clear and detailed judgement upon these issues the court said:
“......the land mark Miranda v. Arizona 384 US 7 436 (1966) ruling did
extend the embargo to police investigation also. Moreover, Article 20(3),
which is our provision, warrants no such truncation. Such a narrow
meaning may emasculate a necessary protection. There are only two
primary queries involved in this clause that seals the lips into permissible
silence, (i) Is the person called upon to testify 'accused of any offence', (ii)
Is he being compelled to be witness against himself ? A constitutional
provision receives its full semantic range and so it follows that a wider
connotation must be imparted to the expressions 'accused of any offence'
and 'to be witness against himself. The learned Advocate General,
influenced by American decisions rightly agreed that in express terms
Section 161(2) of the Code might cover not merely accusations already
registered in police stations but those which are likely to be the basis for
exposing a person to a criminal charge. Indeed, this wider construction, if
applicable to Article 20(3), approximates the constitutional clause to the
explicit statement of the prohibition in Section 161(2). This latter
provision meaningfully uses the expression 'expose himself to a criminal
charge'. Obviously, these words mean, not only cases where the person is
already exposed to a criminal charge but also instances which will
imminently expose him to criminal charges. In Article20(3), the expression
'accused of any offence, must mean formally accused in praesenti not in
future-not even imminently as decisions now stand. The expression 'to be
witness against himself means more than the court process. Any giving of
evidence, any furnishing of information, if likely to have an incriminating
11
impact, answers the description of being witness against oneself. Not
being limited to the forensic stage by express words in Article 20(3), we
have to construe the expression to apply to every stage where furnishing
of information and collection of materials takes place. That is to say, even
the investigation at the police level is embraced by Article 20(3). This is
precisely what Section 161(2) means. That Sub-section relates to oral
examination by police officers and grants immunity at that stage. Briefly,
the Constitution and the Code are coterminous in the protective area.
While the Code may be changed the Constitution is more enduring. There
fore, we have to base our conclusion not merely upon Section 161(2) but
on the more fundamental protection, although equal in ambit, contained in
Article 20(3).”35
The court criticised the conduct of the police, calling it unethical as well as illegal and
ordered that the police shall use no third degree techniques during the process of
interrogation. The court gave certain important directions to the law enforcement
agencies:
An arrestee or a suspect cannot be forced to answered by the police to give statements
u/s 161(2) of CrPc during the process of interrogation.
An arrestee or a suspect cannot be forced to give self incriminatory statements.
Law enforcement agencies shall not use any for of force, torture and any degrading
treatment on the arrestee or the suspect during the process of the interrogation.
Use of „third degree‟ by the law enforcement agencies during the process of the
interrogation shall be banned.
1.2.3 SELVI CASE: CONSTITUTIONAL VALIDITY OF NARCOANALYSIS
In Smt. Selvi v. State of Karnataka,36
the question of the constitutional validity of
the interrogation techniques like narcoanalysis and brain electrical activation profile
was challenged. The petitioner pleaded that interrogation techniques used on her by
the police violated her Constitutional right guaranteed under Article 20(3).
35
Nandini satpathy v. P.L Dani AIR 1978 SC 1028 36
AIR 2010 SC 1974
The petitioner‟s Right against self-incrimination mentioned under Art. 20(3) of the Constitution was
violated by the police officers during the process of the interrogation, the petitioner pleaded that narco-
analysis and brain electrical activation profile techniques were used against her during the
interrogation process and which violated her constitutional right mentioned under Art. 20(3).
12
ISSUES
The following issues were raised in the court: does the use of narcoanalysis technique
and brain electrical activation profile, during the interrogation, violates the
Constitutional Right against self incrimination of the accused?
Does the use of impugned techniques during the interrogation creates a likely hood of
incrimination for the subject?
Does the result derived from the techniques leads to the testimonial compulsion hence
barred by Article 20(3) of the Constitution of India.
Whether the involuntary use of these techniques is a reasonable restriction on
„personal liberty‟ and violates the Constitutional Rights guaranteed under Article 21.
Hence, the court finally held that the involuntary administration of the narcoanalysis
technique and the brain electrical activation profile during the process of interrogation
violates right against self-incrimination guaranteed under Article 20(3) of the
Constitution of India, as the subject do not exercise a conscious control over his
response.37
1.2.4 D.K. BASU CASE: EXHAUSTIVE GUIDELINES FOR ARREST AND
DETENTION
The Nandini sathpathy judgement focuses exclusively upon the procedure to be
followed during the police interrogation process by the police officers. It emphasised
upon providing custodial safeguards to the suspects during the process of
interrogation. It was an implementation of the Miranda cases (US, 1966) on the
Indian soil, but it does not provide any guidelines for the police officers for making
arrest and detention.
37 “... The involuntary administration of the impugned techniques prompts questions about the
protective scope of the `right against self-incrimination' which finds place in Article 20(3) of our
Constitution. In one of the impugned judgments, it has been held that the information extracted
through methods such as `polygraph examination' and the `Brain Electrical Activation Profile (BEAP)
test' cannot be equated with `testimonial compulsion' because the test subject is not required to give
verbal answers, thereby falling outside the protective scope of Article 20(3). It was further ruled
that the verbal revelations made during a narcoanalysis test do not attract the bar of
Article 20(3) since the inculpatory or exculpatory nature of these revelations is not known at the time
of conducting the test. To address these questions among others, it is necessary to inquire into the
historical origins and rationale behind the `right against self-incrimination'. The principal questions
are whether this right extends to the investigation stage and whether the test results are of a
`testimonial' character, thereby attracting the protection of Article 20(3). Furthermore, we must
examine whether relying on the test results or materials discovered with the help of the same creates a
reasonable likelihood of incrimination for the test subject.”
13
While on the other hand Selvi case questions the constitutional validity of the
interrogation techniques like narcoanalysis and brain electrical activation. The
petitioner pleaded that interrogation techniques used on her by the police violated her
Constitutional right guaranteed under Article 20(3). It was decided in this case that
use of such techniques during the process of interrogation is unconstitutional and
violation to the rights of the accused.
Finally, In D.K Basu v. State of W.B (1997),38
the Supreme Court laid exhaustive
rules guiding the conduct of the police during the process of arrest and investigation.
These guidelines broadly included the manner in which a police officer should carry
his conduct while performing the arrest and investigation.39
There have been instances where there guidelines have been constantly violated and
the judiciary has given the reference of this case.
In, Mehboob Batcha and Ors.,40
the victim was charged of theft, he was taken to the
police stations and beaten to death in the police custody, while his wife was brutally
raped by the five appellants. The court observed a severe violation of all the
guidelines provided in D.K Basu case41
and sentenced the appellants for 10 years of
rigorous imprisonment.
While in Boya Boyanllabothula v. Circle Inspector of Police (2010),42
the police
officers falsely charged the suspect under the offence of murder and kept in under
38
D.K Basu v. State of West Bengal, AIR 1987 SCC 592 39 The arresting officer shall bear accurate, visible and clear identification and name tags. A
memorandum shall be prepared by the arresting officer while carrying out the arrest and such a
memorandum shall be attested by at least one witness. The arresting officer shall inform at least one
friend or the relative of the arrested person, regarding his arrest and the place of his detainment. If the
friend or the relative of the arrestee resides outside the district, the arresting officer shall inform the
time and place of the arrest through the Legal Aid Organization of the concerned district. The arrestee
shall be informed about his right to have someone informed pf his arrest and detention. An entry shall
also be made in the police station regarding the particulars of the arrest, details of the next friend of the
arrestee (who has been informed) and the details of the custody officer shall also be mentioned. The
arrestee (if he requests) shall be medically examined at the time of the arrest and the details shall be
registered in the inspection memo. Such a memo shall be signed by the arrestee as well as the arresting
officer. During the detention, after every 48 hours the arrestee shall be medically examined by a
trained doctor appointed by Director, Health Services of the concerned state. Copies of all above
mentioned documents shall be sent to the illaqa magistrate for his records. The arrestee shall be
allowed to meet his legal representative during the interrogation, though not throughout the
interrogation. The information regarding the arrest and the detention of the arrestee shall be provided
to the police control room of the respective district. 40
Mehboob Batcha and Ors. V. State Rep. By Supdt. Of Police, AIR 2011 SCC 45. 41
D.K Basu v. State of West Bengal, AIR 1997 SC 0157 42
AIR 2010(5) ALT 50
14
detention. In trial it was revealed that the accused was wrongfully arrested and detained
by the police due to lack of investigation on their part, While the accused did not had any
compliance with the offence. The appealed court granted compensation to the accused
against the mental and physical harassment caused by the law enforcement agencies.
Lately, in Lalita Kumari v. State of U.P & Ors (2013),43
the instances of unethical
omissions by the police were criticised. In this case, when the Thana police refused to
lodge FIR then the appellant went to the superintendent of the police, were she was not
heard. Finally she filled the writ of Habeas Corpus to get her kidnapped daughter back.
The Supreme Court criticised the omission on the part of the police to lodge the FIR.
In the same case,44
the court laid down the exhaustive guidelines, which need to be
followed by the police officers when they are been informed regarding the commission of
an offence. These guidelines included a mandate on the part of police in order to register
the FIR without conducting any pre-investigation.
1.3 LEGAL TREND IN OTHER COUNTRIES
Beside above mentioned Indian cases there have been a number of cases in US and UK
which reveals the violation of rights of suspects by the police during the process of
interrogation and the court has criticised the role of police in a very strict way.
In United Kingdom, courts observed a huge amount of violation of rights of the accused
by the law enforcement agencies, through the use of improper interrogation techniques.
In Murray case (1996) ,45
the suspect was refused to get access to his solicitor during 48
hours of the continues question. During the whole process of interrogation he remained
silent. A negative inference was drawn from his silence by the police during the
interrogation and the case was prepared against him. The trial court abide by the reports
of the police and convicted him.
Latter he appealed in European Court of Human Right, where his conviction was
reversed and it was held that no adverse inference was supposed to be drawn by the
silence of the suspect during interrogation. It was also held that the conduct of the
43
AIR 2013 ALLMR(Cri) 4444 44
Id. 45
Murray v. United Kingdom, 22 E.H.R.R. 29 (1996).
The applicant was arrested and detained under United Kingdom Prevention of Terrorism Act. 1984 for
aiding a false imprisonment. He was interrogated by the police continuously for 48 hours and a
negative inference was derived from his silence and convicted by the trial court. Latter, on appeal his
conviction was reversed by the trial European Court on Human Rights.
15
investigation agencies was against the provisions mentioned under European Convention
on Human Right 1950.46
It was also held that it is the right of the suspect to have an
access to his lawyer during the initial stages of the police questioning and the
investigation officers should co-ordinate with the same.
In Magee case (2001),47
the appellant was arrested under The Prevention of Terrorism
Act 1984 for having connection with a bomb attack in Northern Ireland. He was denied
of his right to have access to the legal advice during the police question period; he was
also kept in isolation. After 48 hours of questioning in isolation, he was made to sign a
lengthy confession statement against himself, which amounted to a self-incriminatory
confession statement against him.
The appeal was made in European Court of Human Rights against the denial of right to
fair trial of the appellant mentioned under European Convention on Human Rights
1950.48
He also claimed that, putting him into isolation during the questioning session
and not letting him to meet his legal advisor amounted to psychological coercion to him,
which further lead him to give self-incriminatory evidence.
The court held that it has been a grave violation of his right of fair trial mentioned under
Article 6 of European Convention on Human Rights 1950, and criticised the conduct of
the interrogation agencies. It was also held by the court that the conditions under which
the appellant was interviewed were very intense and lead to his psychological
breakdown, due to which he gave self-incriminatory evidence.
In Averill case (2001),49
the appellant was treated under The Prevention of Terrorism
(temporary provisions) Act 1989, having connection in a double murder. The appellant
was not provided access to his legal advisor in the initial stages of the interrogation. The
appellant remained silent throughout the interrogation process and an adverse inference
was drawn by the interrogation officers as well as by the trial court against the appellant.
46
Art. 6(1) and Art. 6(2), European Convention On Human Rights, 1953. 47
Magee v. United Kingdom, 31 E.H.R.R. 35 (2001)
The applicant was rested from his home under Prevention of Terrorism Act and he was taken to the
police station. During the process of interrogation his right to legal advisor was refused and he also
contended that he was ill treated during the interrogation. His plea was not considered in the trial court
, then he appealed through the European Commission of Human Rights and his appeal was accepted in
the European Court of Human rights. 48
Art. 6, European Convention on Human Rights, 1950. 49
Averill v. United Kingdom, 31 E.H.R.R. 36 (2001).
The case originated from the application against the United Kingdom of Great Britain and North
Ireland lodged with the European Commission of Human Rights in the European Court of Human
Rights under Article 25 of the convention for the protection of Human Rights and Fundamental
Freedoms by an Irish citizen Mr. Liam Averill.
16
An appeal was made to the European Court of Human Rights for the violation of right
to fair trial under European Convention on Human rights.50
The court criticised the
role of interrogation agencies, saying that access to legal assistance to the suspect is
must before the beginning of the questioning session and the investigation agencies
failed to do so. The court also held, in contrary to the Murray Case,51
that there has
been no violation of European Convention Of Human Rights,52
as right to silence is
an absolute right and the judge has the authority, after enumerating the circumstances,
to draw inverse inference out of the silence of the suspect.
In Brennan case (2002),53
the right to fair trial mentioned under European
Convention of Human Rights54
was violated by the police officers during the process
of interrogation. The accused was not provided access to his solicitor for 24 hours of
the interview. The European Court of Human Rights did not criticised the role of
police and said that during the whole process of questioning the suspect by a police
officer and he was not incited to make any self-incriminatory statement on that stage
of questioning. On the other hand, the trial court did not draw any negative inference
from his silence.
While in Salduz case (2009),55
the suspect was denied of his right to fail trial under
ECHR56
and was provided access to legal advice during the police interrogation
process. He court held that right to have access to legal advice is a procedural
safeguard provided to the suspect in order to provide a fair trial procedure to him. It is
also a fundamental feature of a fair trial process and the police have failed to fulfil
this basic requirement of the trial process.57
50
Art. 6.1 r/w Art. 6.3(3) & Art. 6.2, European Convention On Human Rights, 1950. 51
Murray v. United Kingdom , 22 E.H.R.R. 29 (1996). 52
Art. 6.1 r/w Art. 6.3(3) & Art. 6.2, European Convention On Human Rights, 1950. 53
Brennan v. United Kingdom, 34 .E.H.R.R. 18 (2002).
The application was filed in the European Court of Human Rights by Thomas John Brennan against
the trial court decision. He was arrested under Prevention of Terrorism Act1989 in Strabane by the
police for the investigation of a murder. He was interrogated continuously for 35 hours and ill treated
in the police custody, the trial court did not considered any of these factors. 54
Art. 6, European Convention On Human Rights, 1950. 55
Salduz v. Turkey, 49 E.H.R.R. 19 (2009).
The appeal was made by Mr. Yusuf Selduz in the European Court of Human Rights, the applicant was
arrested by the police officers of Anti-Terrorism Branch in the suspicion of having participated in an
unlawful demonstration. The applicant contended that he was interrogated in the absence of his lawyer.
His plea was not accepted in the trial court and he was convicted. Latter he appealed in European
Court of Human Rights and his appeal was granted. 56
Art. 6, European Convention On Human Rights, 1950. 57
Id.
17
The court also mentioned that the accused was a young offender and he could have
been given the access to his lawyer so that he could have a fair opportunity to
challenge the evidence established against him by the police.
In Cadder (Peter) case (2010),58
the appellant was not allowed to have access to the
legal advice during the process of interrogation. The appellant was convicted by the
trial court. An appeal was made in appellate court, where the appellant claimed that
his right provided under ECHR59
was violated. The court quoted the judgement of
Salduz60
and held that a detainee should have access to his lawyer from the first
instance of the beginning of the interrogation, unless there were compelling reasons
in the circumstances of the case that has made the presence of the lawyer
impracticable.
From all the above judgements it shall be noted that the role of investigation agencies
has been criticised by the court on the ground of non compliance with the laws
established by the legislatures and conventions for the protection of rights of the
suspects. In some cases, like Salduz61
and Cadder (Peter),62
it was mentioned by the
judiciary that the police should be given some amount of flexibility in order to
maintain its freedom of action during the interrogation process, but in certain cases,
like Murray63
and Magee,64
it was mentioned by the court that the police should
strictly abide by the laws and regulations which are been provided as the rights of the
suspects in order to ensure a fair trial process to him.
It was also observed in above mentioned instances that police has continuously failed
to comply with the rules and regulations, provided in order to maintain the rights of
the suspect during the process of interrogation and it has used harsh techniques to
obtain evidences against the suspect, finally, creating an imbalance between the
interest of the society (securing justice) and the interest of the accused.
58
Cadder (Peter) v. HM. Advocate, UKSC 43 (2010).
The accused was detained by the police for causing serious assault, under section 14 and section 15 of
Criminal Procedure (Scotland) Act. 1995. He was not allowed to have access to his legal advisor 59
Art.6(1) & Art. 6 (3)(a), European Convention On Human Rights, 1950. 60
Salduz v. Turkey, 49 E.H.R.R. 19 (2009). 61
Id. 62
Cadder (Peter) v. HM. Advocate, UKSC 43 (2010). 63
Murray v. United Kingdom, 22 E.H.R.R. 29 (1996). 64
Magee v. United Kingdom, 31 E.H.R.R. 35 (2001).
18
While in United States, most of the implicit provisions of the Fifth Amendment have
been interpreted by the work of judiciary in the favour of the suspect in number of
cases. We shall have a look over the land mark judgements which have been the
significant promoters of the rights of the suspect and reveals the violation of the
same.
In Brown case (1936),65
the 3 defendants were accused of murder and the only
evidence against them was their own confession given by them to the police. Later it
was revealed in the trial that the confessions were taken through applying harsh
interrogation techniques and torture. They contended that the police officers wiped
them brutally during the interrogation process and his neck from a tree in addition to
the whippings strung one of them, but the confession was still admitted as the
evidence and the trial court held them guilty. Later on appeal, the Mississippi
Supreme Court affirmed their conviction. In an unanimous decision, the court
reversed the conviction of the defendants. It was held that the defendant‟s confession
obtained by the police with violent and inhumane techniques during the interrogation
violated the due process clause of the Fourteenth Amendment.66
In Chambers case (1940),67
four black men were convicted of murder of a white man
in Florida. The defendant „Chambers‟ and other three co-defendants were taken to
Miami for interrogation. The accused were questioned continuously for one week,
they were not allowed to see their lawyer and they were also not informed of their
„right to remained silent‟ by the interrogation officers. Finally, the accused confessed
to the crime, on the ground of their confession letter they were convicted by the trial
court. Latter on the appeal the court criticised the conduct of the police saying that
confessions have been clearly obtained in a compelled situation and therefore they are
not supposed to be admissible as the evidence.
65
Brown v. Mississippi, 297 U.S. 278 (1936)
The two accused were convicted of murder the only evidence against them was their own confession
letter. In appeal (Mississippi Supreme Court) they contended that their confession was taken by the
police through the use of the violent techniques during the interrogation process. Hence the Mississippi
Supreme court reversed the order of the trial court in the favor of the accused. 66
Cortner, Richard C., A “Scottsbro” case in Mississippi; The Supreme Court and Brown v.
Mississippi, University of Mississippi LR, (1986). 67
Chambers v. Florida, 309 U.S. 227 (1940)
19
In Ashcraft case (1944),68
the two defendants were charged of murder and the only
evidence against them with the prosecution was their confession letters. The trial
court sentenced them for the 99 years on the bases of their confessions. Latter on they
appealed in the Supreme Court of Tennessee were both of the men‟s convictions were
affirmed. Finally the case was appealed in the United States Supreme Court, the court
held an independent examination and found that the defendants were interrogated
continuously for 38 hours with only one 5 minute break in between and the defendant
admitted that they confessed of the fear of the mob violence. Their conviction was
reversed by the court.
In Haynes case (1963),69
the petitioner was charged of robbery and found guilty by
the jury and sentenced for the term of 20 years. In the appeal, the petitioner revealed
that the police took his confession by using violent interrogation techniques and he
was induced by the police through treats and promises to give self-incriminatory
statements. The US Supreme Court criticised the conduct of the police and reversed
the conviction of the defendant.
After these cases, in 1966 a number of petitioners filled a writ of Certiorari against
the torture and brutal violence they faced during the interrogation procedure
conducted by the police officers. This writ was known as writ of Miranda (1966),70
It was held by the court that in each of the cases the statements of the accused were
obtained by the use of improper interrogation techniques and the circumstances which
did not meet the constitutional standards provided for the protection of the rights of
the accused.71
68
Ashcraft v. Tennessee, 322 U.S. 143 (1944)
The two accused were charged of murder , they contended in the trial court that they were ill treated by
the police during the process of the interrogation, they were interrogated contiguously for 38 hours
without a break and they were forced to write their confession letter. Trial court did not considered
their plea and convicted both of them. Hence, they appealed to the Supreme Court of the Tennessee
where their conviction was reversed. 69
Haynes v. Washington, 373 U.S. 503 (1963)
The petitioner was charged of robbery, he contended in the trial court that he was forced by the police
during the interrogation to give his confession but the trial court did not considered his plea and he was
convicted by the trial court for 20 years. Hence, the accused appealed in the Supreme Court of the
United States, where the order of the conviction given by the trial court was reversed and the role of
the police was criticized. 70
Miranda v. Arizona 384 U.S. 436 (1966) 71
Id. 348 U.S. 491-499
20
The Miranda case lead to the establishment of the certain rights of the accused which
were already implicit in the 5th
Amendment of the U.S. constitution, they are created
by the whip of the judicial wisdom and they are the integral part of the criminal
procedure to be followed by the investigation agencies during the process of the
interrogation.
1.4 EFFECT OF CUSTODIAL GUIDELINES
In the light of above cases and judicial pronouncements, we can say, that an unethical
practice can include any misconduct as well as any omission on the part of the police
to perform their duties.
In all these above cases, a grave violation of the right of suspect was observed by the
court during the police interrogation process. Hence, exhaustive guidelines were
provided by the court to redirect the course of interrogation process of the police.
There was a need to provide these guidelines as there was a grave violation on the
part of the police since a long time, as it is depict able in Nandini case, where the
question of violation of constitutional right against self incrimination was challenged
first time, the court decided in the favour of the constitutional right and laid certain
guidelines which restricts custodial violence in a very strict sense. After the Nandini
case there seemed no practical implementation of the courts order by the police.
Hence, there was a need to lay down a more exhaustive set of guidelines regarding
the conduct of the police during the pre-trial process. Thus a more exhaustive
guidelines were laid in 1996 in D.K Basu case by the Supreme Court. Subsequent
amendment was also made in the Code of Criminal Procedure in 2006 to provide a
statutory power to those guidelines.
In 2010 it can be observed from the Selvi Case, that inspite of being directed by the
court, the police devised new mechanisms to abuse the constitutional rights of the
suspect during the interrogation process. The police started incorporating techniques
like narcoanalysis and polygraph test to interrogate a suspect, which was again
criticized and held unconstitutional by the Supreme court in the same case, saying
that the involuntary use of these techniques will amount to the violation of the
constitutional right against self incrimination mentioned under Article 20(3) of the
constitution.
21
I believe, beside having so many statutory rules and Supreme Court guidelines, the
police still continues to abuse and violate the constitutional rights of the suspects. In
order to prove this argument an empirical research need to be conducted, so that we
can have an idea of the practical implementation of the law by the police officers. this
paper aims to conduct an empirical study to find the condition of practical
implementation of the various Supreme Court guidelines, given in the above
mentioned cases, in the present day scenario.
1.5 REVIEW OF THE LITERATURE
The question of custodial torture has been raised again and again in a number of
cases, which reveals that the police is not sensitive enough towards the rights of the
suspects guaranteed by the statutes, which further shows that a fair interrogation
procedure is not the part of the occupational culture of the police.
Besides the judicial efforts in these cases a considerable amount of work is done by
the legal researchers and writers to recognise a suitable method of interrogation to
meet the standards set by various Human Right Organisations and Landmark
Judgements. They have deeply studied the nature of the interrogation process and
scientifically developed it into more effective as well as a legally correct process.
Stephen Moston & Perry Engelberg (1993) 72
observed that when there is
avoidance on the part of the suspect during the process of interrogation, the police
officer immediately terminates the questioning as soon as he encounters the silence
and switches over to the process of rationalisation, where the officer argues directly
against the use of silence in the interview. Which further violates the „right to remain
silent‟ of the suspect.
Geoffrey M. Stephenson & Stephens J. Moston (1994) stated that, sometimes the
purpose of the interrogation is just to get the confession from the accused so an
acquisitorial style of question is used against the accused in order to get confession
72
Stephen Moston & Perry Engelberg, Police questioning techniques and Tape recorded Interviews
with criminal suspects, 3(3) Policing and Society: An International Journal of Research and Policy,
(1993).
22
from him and it is been observed that 42% present of suspects admitted under their
guilt- their confession.73
An ideal interrogation process shall include proper questioning methods and with a
non-compulsive technique, availing of legal representative etc. The gravity of the
question shall be such that it should not create a fear or compulsion in the mind of the
accused to give a specific answer.
On the other hand, there are a number of safeguards available to the accused during
the pre-trial process, the police is required to follow them. The safeguards available to
the witness are mostly are the product of the judicial wisdom. In a situation of
absence of any explicit law, there have been cases, where, the police has failed to
fulfil the criteria which is been required to be followed in order to conduct an
„ethically correct‟ Interrogation process. In such cases the judiciary has come up with
comprehensive suggestion and helped in securing the rights of the accused (Miranda
case74
on right to remain silent).
The suspect enjoys certain rights and freedoms out of which „right to remain silent‟ is
most venerable. On one hand, it gives a saving effect to the interest of the suspect in
order to preserve his privacy, but on the other hand it also creates a huddle for the law
enforcement agencies to conduct an effective interrogation process and obtain
evidences. The police officers should be trained with such interviewing skills through
which they could obtain the relevant information without violating the rights of the
suspect.
Maria Hartwig, Par Anders, Granhag & Aldert Vrij (2005) stated that the
interrogation of the suspect being the most crucial stage in the interrogation process,
shall be conducted very strategically and in a skilled manner, so that cases of
miscarriage of justice could not take place. In order to conduct an ethical, skill full
and effective interrogation more emphasis should be paid upon obtaining the truth
and not merely obtaining the confession.75
In order to seek relevant information
73
Geoffrey M. Stephenson & Stephens J. Moston, Police Interrogation, Psychology, Crime and law
journal, (1994) 74
Miranda v. Arizona, 384 U.S 436 (1966). 75
Maria Hartwig, Par Anders, Granhag & Aldert Vrij, Police Interrogation From a Social Psychology
Perspective, 15(4) Policing and Society: An International Journal of Research and Policy, (2005).
23
during interrogation, the technique and strategies to be used shall be ethical, legal and
scientific (shall be capable to penetrate the psychology of the suspect).
Another study (Leif A. Stromwall, Maria Hartwig & Par Anders Granhag, 2006)
was conducted in 30 interrogation sessions upon two groups of accused, out of which
the first group was of liars and the second group was of truth tellers.76
By analysing
there body language during the interrogation process, non verbal indicators of
deception were identified. It was observed that the liars were reportedly being
significantly more nervous, and found the task more strenuous than the group of truth
tellers. It was also observed that the group of liars tried to keep the story of the crime
short and simple and on the other hand the truth tellers get the story more realistic and
complicated.
The studies have shown that certain extensive methods of interrogation may lead to
false confession. Which could be the result of „memory distrust syndrome‟
(Gudjonsson & Mackeith in 1982). A study was conducted (Saskia Van Bergen,
Marko Jelicic & Harald Merckelbach, 2008)77
to examine the relation between
memory distrust, false confessions and intensive interrogation techniques. In the
study a group of innocent undergraduate students were falsely accused of
examination fraud and five interrogation techniques were used against them, which
included, false technical evidence, false eyewitness, minimising, maximising and
suggesting memory problems. It was further observed in the study, that „suggesting
memory problems‟ was found to have largest impact on the memory distrust, the
subjects were willing to accept and confess for what they have not done. The effect of
„suggesting memory problems technique‟ was immediate when false evidence was
also established against them. So it was considered that some of the intensive
interrogation techniques, through which memory problem is suggested to the subject,
can overcome the rationality of the subject and he can be haunted by „memory
distrust syndrome‟ and can give confession of what he has not done.78
76
Leif A. Stromwall, Maria Hartwig & Par Anders Granhag, To Act Truthfully: Non Verbal Behaviour
and Strategies During a Police Interrogation, Psychology, 12(2) Crime and Law journal, Volume,
(2006). 77
Saskia Van Bergen, Marko Jelicic & Harald Merckelbach, Interrogation Techniques and Memory
Distrust, Psychology, 14(5) Crime and Law Journal, (2008) 78
Id.
24
In a qualitative analysis (Durant Frantzen, 2010) 79
it was reported that physical
evidence are considered most important than the testimonial evidence, so, confronting
the suspect with the evidence of their guilt and offering moral justifications were
among the most effective interrogation techniques to eliciting suspect confessions.
In another study conducted in Japan (Taeko Wachi, Kazumi Watanabe, Kaeko
Yokota, Yusuke Otsuka, Hiroki Kuraishi & Michael Lamb) over 276 police
officers regarding their interview techniques involved in interrogation. It was found
that their interview technique included the analyzation of five important factors, they
were, presentation of evidence, confrontation, rapport building, active listening and
discussion of the crime.80
Based upon these five factors there were four recognised
interviewing styles, they were, evidence focussed, confrontational, relationship
focussed and undifferentiated.81
It was observed in the study that when the
interrogators used the relationship focussed interview styles the suspects were more
likely to make confession and provided new information.
With the overall civilization up gradation the nature of the crime and the criminals
has also upgraded, the criminals are more deceptive, quick and smart. In order to deal
with such smart and complicated brains, the police also need to use similar up graded
interrogation strategies. The law enforcement agencies shall be equipped with the
training of criminal psychology and the strategies which can effectively tackle with
such complicated criminal minds.
The purpose of the study is to analyse various scientifically proved Interrogation
techniques and their legality in accordance to the constitutional rights of the accused
as well as the freedom of action of the police. The study will also suggest the
alternative measures and questioning techniques which could substitute the traditional
harsh Interrogation methods.
The study will not only emphasise upon the various CJS principles to be followed by
the law enforcement agencies in order to conduct an ideal interrogation process, but
79
Durant Frantzen, Interrogation strategies, evidence and the need for Miranda: A Study of Police
Ideologies, 11(3) Police Practice and Research: An International Journal, (2010). 80
Taeko Wachi, Kazumi Watanabe, Kaeko Yokota, Yusuke Otsuka, Hiroki Kuraishi & Michael Lamb,
Police Interview Styles and Confessions in Japan, Psychology, Crime and Law Journal, (2013). 81
Id.
25
also suggest the guidelines given by the judiciary in order to maintain an „ethically
correct‟ interrogation model.
Further, The research will deal with three common factors which shall be included in
an ideal interrogation process. The first factor will be the „ethics of the police‟ need to
be involved in the interrogation process, secondly, the „Law‟ which supports the
rights of the suspect and thirdly, the use of „scientific techniques‟ by the police in
order to obtain relevant information during the interrogation without violating the
„law‟ ( rights of the suspect).
The study will make an emphasis upon the ethical conduct of the police officers
which need to be adopted in an interrogation process. The study will also analyse the
legal safeguards provided to the suspect, then finally the study will suggest certain
scientific techniques which will not only comply with the ethical conduct of the
police but also suite the human rights of the suspect.
The basic objective of the study is to gather data regarding the problems faced by the
interrogation officers and to suggest psychological as well as scientific methods of
the interrogation which will be helpful to the law enforcement agencies as well as
suitable to the rights of the suspect
The techniques used in the process of Interrogation will be analysed on a
comparative degree in order to obtain a universal and a best Interrogation format
which would be not only suitable to the rights of the victim but will also provide
enough freedom of action to the police.
1.6 STATEMENT OF PROBLEM
The present study intends to focus upon the custodial interrogation law, policy and its
implementation. With the help of the non-doctrinal method the proposed exercise will
attempt to know, what is the legal validity of the interrogation process generally
followed by the police? Is it in accordance to the constitutional principles of the
human rights? Is it in accordance to the international standards set by various UN
Conventions? The study will be endeavoured by the idea that the Interrogation
process followed by the police is not „ethically correct‟ as it does not incorporates the
principles of „natural justice‟. The study will also make a comparative analysis upon
26
the rights of the victim violated during the process of the interrogation and the degree
of the freedom of action available to the police.
1.7 RESEARCH OBJECTIVES
- To outline the law and policy frame work governing custodial interrogation in
India.
- To test the ground realities of existing police practices in Delhi regarding
custodial interrogation
- To analyse the effectiveness of the guidelines provided bt the Supreme Court of
India in D.K. Basu case.
1.8 HYPOTHESIS
- The police subject the suspect to force and torture in order to get self-
incriminatory statements and violate the right against self-incrimination.82
- There is a grave violation of, „Right to have a legal advisor during the pre-trial
process‟,83
84
on the part of the police.
- Most of the interrogation officers are unaware of the guidelines laid down in D.K.
Basu case.
1.9 RESEARCH DESIGN
In accordance with the objectives of the present study, non-doctrinal research designs
have been adopted. The non-doctrinal method or empirical approach is the prime
highlight of this study. In this pursuit, a sample survey has been carried out to collect
the required data by using questionnaire interview technique.
82
Art. 20(3), THE CONSTITUTION OF INDIA, 1950 and Sec. 161(2), Code of Criminal Procedure, 1973. 83
Art. 14(3)(b), International Covenant on Civil and Political Rights, 1976. 84
Section 41D, Code of Criminal Procedure, 1973, inserted by Amendment Act. 5 of 2009
27
1.10 SAMPLE & LOCALE OF THE STUDY
In order to attain the suggested objectives of the study, the suspects/arrestees and
interrogation officers are included in the study. To have a suitable geo-cultural mix in
the study, it was intended to include 5 Thanas, which include 3 mofussil area Thanas
of Delhi ( Thana Sangam Vihar, Thana Ambedkar Nagar, Thana Prahaladpur) and 2
Urban area Thanas of Delhi (Thana Kalka ji, Thana Greater Kailash). Data was
collected through direct personnel interview technique through the questionnaire from
19 police arrestees/suspects and 29 police officers.
28
CHAPTER 2
POLICE ETHICS
According to Herbert Packer (1964), there are two main models of criminal justice
systems. The first one is The Crime Control Model,85
which demands a police system
equipped with sufficient authorities to convict criminals quickly and efficiently.86
The
another one is The Due Process Model,87
which desires to have laws which are
human right friendly and support civil liberties.88
But neither model explains the full
range of the police motivations, objectives and behaviour.89
Thus leaving the scope
for vagueness and subversion in the pre-trial procedure.
The rules and the value of a due process which are incorporated in the criminal
process are oftenly changed by the police in their day to day activities, and the
assumption which has, thus, so far not been challenged is that the operational
practices of the police reflects the incorporation of the rules of Crime Control
Model.90
It is considered that such a freedom and flexibility of action is important to
preserve the occupational culture of the police.91
Thus, freedom of action of the
police shall be governed by some ethical code.
In the Indian Criminal Justice System, the principles of „Ethical Policing‟ are very
well embedded in the law itself. The safeguards to the interest of the accused can be
seen embedded in the Indian constitution. In order to take away the liberty of a person
there shall be a prescribed „due process‟92
which shall be based upon the principles of
natural justice93
i.e. fairness, non-arbitrariness, just, reasonable etc. So, an ideal
85
Herbert L. Packer, Two Models of The Criminal Process, 113(1) U. PA. Law Review (1964)
The primary purpose of A Criminal Justice System is to suppress the crime. 86
Sathnam Chough, Models Of The Criminal Process In Policing As Social Discipline, Clarendon
Press (1997). 87
Herbert L. Packer, Two Models of The Criminal Process, 113(1) U. PA. Law Review (1964)
The procedures for repressing crime should pay due regard to the concept of the primacy of the
individual. 88
Sathnam Chough, Models Of The Criminal Process In Policing As Social Discipline, Clarendon
Press (1997). 89
Id. 90
Id. 91
Andrew Ashworth, THE CRIMINAL PROCESS, 63 (2010) 92
Art. 21, THE CONSTITUTION OF INDIA, 1950 93
Maneka Gandhi v. UOI, 1978
29
Interrogation process, which is also ethical, shall be in accordance to these principles
of natural justice.
The constitution, explicitly, also talks about the principle against self incrimination94
,
provision to provide the accused with a legal advisor during interrogation is also
manifested in the constitution.95
These embedded principles of the Indian
Constitution explicitly demand for the establishment of an ethical interrogation
structure which should be followed properly by the law enforcement agencies.
It is a mixed question of law and facts, that what should be an ideal structure for the
Interrogation process, which should, on one hand, protect the constitutional rights of
the suspect and, on other hand, provides the freedom of action to the law enforcement
agencies.
The provisions regarding the procedure of questioning and interrogation of the
accused can be traced from Sections 160 to 164 of Code of Criminal Procedure, 1973,
and Sections 24 to 30 of Indian Evidence Act, 1872. These sections comprehensively
reveal the procedure which is to be followed while conducting an interrogation by the
police in order to secure the interest of the justice as well as the interest of the
Individual (suspect).
The procedure mentioned under these sections includes the procedure of recording
the statement and the evidential validity of the extra-judicial confession. But, nor
these have not placed any restrictions upon the Interrogation techniques of the police,
neither the judiciary has laid any list of so called „accepted‟ and „un-accepted‟
methods to be used by police. Interrogation techniques are the matter of fact which
include generally followed practices and they have been continuously criticised on
the grounds of their harshness for violating the rights of the accused.
There are cases where the police has compelled the accused during the interrogation
session and made him to give evidences against his own self.96
Also there are
instances where the police has brutally compelled the accused to take his extra-
94
Art. 20(3), supra note 18. 95
Art. 22(1) & Art. 39(A), supra note 18. 96
Nandani Satpathy v. P.L Dani, AIR 1978 SC 1025
30
judicial confession.97
There have been a number of cases where the police has not
even fulfilled the criteria of the „due process‟ which is recommended by the statutes.
So we can say that, in order to conduct an Interrogation in a more Ethical way, the
police shall not only take care of the „due process‟ as prescribed in various statutes
enacted by the legislature but on the other hand it should also ensure that it may not
bend the whole process of interrogation in accordance with its own interest i.e, to
secure conviction as per crime control model.
2.1 LAW AND ETHICS
In a Criminal Justice System, ethics have their own importance. They are the
principles that can help to close the gap between our aspirations and our day-to-day
actions.98
Ethics are those principles that are required to guide the conduct of different
groups of functionaries in a criminal process. Every criminal process is based upon
certain rules and regulations, which are sometimes needed to be interpreted, in order
to interpret such rules the discretion of the functionary is to be exercised, and to
exercise such discretion an ethical code need to be laid down.
The ethical code not only guides the discretion of a criminal process functionary but
also tells him the way through which he can impart the retributive justice, on one
hand and secure human rights of the subject, on the other hand.
The ethical code of different criminal process functionary may vary in accordance to
the role they play in the criminal justice system.99
A good law is ethically and morally
correct too. In order to legislate a socially „correct‟ law the principles of ethics shall
be considered. So it is considered that the ethical principles apply on the law makers
as well as to those who are subjected to them i.e. the ones who are supposed to abide
by it (lower rank functionaries).
The various functional groups in a criminal justice process have different
occupational cultures, an ethical code may help to define their occupational culture
and help them to use their discretion accordingly.
97
Kali Ram v. State of U.P, AIR 1973 SC 553 98 Andrew Ashworth, THE CRIMINAL PROCESS, 63 (2010) 99
W.H. Simon, The Ethics Of The Criminal Defence, Mich LR 1703 (1993).
31
Ethics are those guiding principles to the lawmakers that help them to make rules for
the particular group of criminal process functionaries, such rules, which are suitable
to their occupational culture.
The ethical code of a particular occupational culture of a particular functional group
(police, lawyer, prosecutor etc) not only helps to develop their professional skills but
also helps the new recruits to develop an attitude in accordance to the demand of their
profession.
No criminal justice process in the world is completely exhaustive with explicit laws,
with every minute directions provided to its functionary, in order to tackle with every
technical situation. For such situations an absence of law can create a vacuum in the
process, in order to overcome the „non liquate‟ state of the situation the functionary
has to use his own discretion. An ethical code can serve as a bridge to pass over gap
which is created due to the absence of explicit rules in a criminal process. In a
situation where there is a discretion to make, and there are explicit rules too, the
functionary has the choice to follow the either.
The law enforcement agencies play a primary role in order to start a fair criminal
process. The laws laid by the legislature and the directions given by the judicial
pronouncements guide the conduct of the police officer, but the nature of the police
profession is such, which includes fine technicalities which demand a practical
implementation of skills.
Police and other investigation agencies deals with situations, in their day to day
professional work, which includes tackling with a number of diverse situations. No
exhaustive rules could be set in order to guide professional conduct, which indeed
demands a large amount of subjectivity. To pursue the occupational demands police
has to, sometimes, utilise their own discretion to tackle with different situations. In
such a condition where discretion is need to be used, professional ethics can play an
important part to guide such discretion. In a state of „non-liquate‟, where there is an
absence of any law, ethics play an alternative role to guide the discretion of the
functionary to dispatch his professional responsibilities.
By training the police officers in such a way that they could use their discretion
appropriately when there is an absence of any explicit law to guide their actions. This
way the new recruits could be gradually adopt the professional ethics through an
32
artificial training mode. Another way through which a police officer can adopt the
ethics of his profession is- when he accepts the occupational culture of his
professional group by practically working in the group. It is an automatic and gradual
process through which the new recruits joins the force and adopts the occupational
ethics through a span of time.100
What kind of principle could be defined as „Ethical‟? the ethnicity of a principle is
always based upon the instruments of impartiality, in a criminal justice process there
is a collision of interest between two parties at least. The instrument of impartiality
requires that no preference shall be shown towards any of the one party on the
extraneous grounds such as wealth, social connections, sex, race and so forth, in the
process of providing them the justice.101
An ethical code also forbids the criminal justice practitioner to act in accordance to
his self interest. An ethically correct code will allow the practitioner to act without
self interest by setting aside his personnel convenience, profit and other extraneous
motivation.102
What is an „unethical practice‟? an unethical practice could be that which is, legally
correct but is not on accordance to the occupational culture of a criminal process
practitioner. There are practices which are legally as well as morally incorrect; such
practices also fall within the preview of „unethical practices‟.
Unnecessary detention: the purpose of the detention of a suspect should be „to
secure or preserve evidence or to obtain evidence by questioning‟, and it should be
done in rare circumstances after the examination of sufficiency of the evidence so that
the right to liberty of the suspect is not violated. Authorisation of detention in a
routine manner by the custody officers, that too, without the sufficiency of the
evidences would fall within the preview of an unethical practice.103
Disclosure of relevant evidences: if the investigation agencies have discovered
certain evidences which are in favour of the defence, than they should disclose the
100 M. Maguire and C. Norris, THE CONDUCT AND SUPERVISION OF CRIMINAL INVESTIGATIONS
(1992) 101
Ashworth, supra note 7, at 62 102
Id. 103
Mc Kenzie, R. Morgan and R. Rainer, Helping The Police With Their Enquiries: The Necessity
Principle And The Voluntary Attendance At The Police Station, Crim LR 22, (1990).
33
same to the defence or the prosecutor. Failing to do so will amount to an unethical
omission on the part of the investigation agencies.104
Failure to quash a weak case: the Crown Prosecution Services was introduced in
order to check the strength of the case by measuring it on the parameters of collected
evidence and discontinue to process weak case in the pre trial stage itself.105
The CPS
was given power to discontinue such a case and save the precious time of the
judiciary.106
There are instances where CPS has continued to process a case against
which there were insufficient evidences, just to maintain good relations with the
police. Such a practice would be considered Unethical.107
Rights of the suspect: every suspect when arrested or called for interrogation has
certain rights in order to ensure his fair trial. The suspect generally have rights like
right to get informed about the grounds of arrest, right to get legal advice, right to
make telephone calls and so on. It is an ethical duty of the police to provide easy
accessibility of these rights to the suspect.
In a study it was found that all the suspects were not informed of these rights by the
law enforcement agencies. If such a practice is conducted by the police officers
intentionally then it will fall under the preview of „unethical practices‟.
Obtaining evidence by illegal means: there have been a number of cases where the
law enforcement agencies have used the inappropriate methods, which were illegal
too, in order to obtain evidences from the suspect. Obtaining a false confession or
violating the right to remain silent during interrogation process, are categorised as
„unethical practices‟.108
Following a proper interrogation process is an important question to ethical policing.
Where, the police has to create and maintain a balance between „securing the ends of
the investigation‟, on one hand and „the rights of the accused/witness‟, on the other
hand.
104
Maguire Seven, Birmingham six. 105
Para 7.6, ROYAL COMMISSON ON CRIMINAL PROCEDURE REPORT (1981), 106
Sec. 23, Prosecution of Offences Act, 1985. 107
J. Baldwin, Understanding Judge Ordered And Directed Acquittals In The Crown Couet, Crim Lr
536, (1997). 108
Miranda v. Arizona, 384 U.S 436 (1966)
34
It is the most important step in the course of the investigation in order to establish the
validity of commission of an offence. So, the police, on one hand, has to pay due care
and attention while working on behalf of the Criminal Justice System, and on other
hand, it also need to take precautions regarding the safety of the rights of the accused
available to him during the pre-trial process.
2.2 THREE MODELS OF POLICING
There are three models of policing systems followed by the democratic nations.109
The
main focus of a nation while following these models is to maintain a balance between the
freedom of an individual and the interest of the society i.e. providing the justice. In
democratic nations the government decides the amount of freedom to be given to the
citizens in order to maintain a crime free society. It is the duty of the law government to
maintain the balance in controlling the freedom of the individual as well as the interest of
the society. On the basis of this principle three models have been identified, which are
been followed by the democratic nations.
2.2.1 FRAGMENTED MODEL OF POLICING
Under this model the police authorities are extremely decentralized and enormous
amount of limitations have been enforced upon the police authorities. Individual liberty is
given more importance and the role of the police authorities is limited by the restrictions
enforced by the government. This model is followed by the countries which tend to
tolerate crime at the cost of the freedoms of the citizen. In this system a more tilt is given
to the rights and liberties of the individual than the interest of the society. Under such
model the nation seeks to tolerate the crime at a higher degree so that less restrictions are
implemented in the in the society and civil liberties are given more pace.
Generally this system is followed by those nations which are already developed in terms
of economy and possess a very low rate of crime, for example Canada, Netherlands,
Belgium, Switzerland etc. United States also follow a Fragmented Model of policing.110
In this system, the police is decentralized and it is regulated by the local governments. It
is the responsibility of the local government to provide police services to the citizens.
109
13 Police Stud. Int'l Rev. Police Dev. 118 1990, Content downloaded/printed from Hein Online
(http://heinonline.org) Sat Apr 05 04:59:15 2014 110
Id.
35
One of the demerits of this system is that it gives pace to the crime as well. It is week in
terms of controlling the crime. Law enforcement agencies have very liberal control upon
the society and their freedom of action is limited by the government as more focus is
upon the promotion of individual freedom.
2.2.2 CENTRALIZED MODEL OF POLICING
Under this model, the police authorities are under the direct control of the central
government, but the police organization is highly decentralised in its operational
structure. It is the responsibility of the central government to provide policing services to
its citizens.
With comparison to fragmented model, under this model the law enforcement agencies
are provided with more freedom of action, so that there could be more of crime
controlling in the society than securing the human rights. One of the demerits of this
system is that it restricts the individual liberty at the cost of crime control.
Nations that follow this model of policing are France, Italy, Finland, Israel, Thailand,
Taiwan, Ireland, Denmark and Sweden.
2.2.3 INTEGRATED MODEL OF POLICING
This is the policing system that is moderately decentralized, it is also called the
„combined-system‟ or a „compromised-system‟. In this system the central as well as the
local government shares the control over the law enforcement agencies. Under this
system, a balance is tried to maintain between the freedom of action of the law
enforcement agencies, on one hand and the civil liberties of the citizens, on the other
hand.
Nations that follow this model of poling are Japan, Australia, Brazil and Great Britain.
This system of policing is more efficient than the Fragmented model of policing as well
as the Centralize model of policing, as it provide scope for both i.e. the interest of the
society (crime control) and the civil liberties of the individual.
Based upon these models, now we will compare the Historical Origin of the policing
systems in various nations. We will also put a light upon the nature of structure followed
in these countries in order to maintain the efficient functionality of the law enforcement
agencies.
36
CHAPTER 3
CUSTODIAL INTERROGATION: LAW AND POLICY
(INDIAN AND INTERNATIONAL PERSPECTIVE)
There are various legal provisions across the world regarding treatment of suspects
and arrestees during the police interrogation process. Though there are certain
common variables which are implicit in all the guidelines. In this chapter we will
discuss the position of „custodial interrogation‟ and the law & policy implicit in the
legal guidelines in the form of the statutes of three different nations i.e. United
Kingdom, United States and India.
3.1 CUSTODIAL DIMENSIONS & INTERNATIONAL
SAFEGUARDS
Atrocities to a suspect of the police are common all over the world and so are their
rights. The position of the rights of the suspects are almost similar worldwide in most
of the Criminal Justice Systems but the different law enforcement agencies in the
world follows different techniques to approach the suspect in order to seek evidence.
The techniques through which the law enforcement agencies approach the suspect are
the integral part of their occupational culture and they are been used pompously by
the police during the process of the interrogation.
It has been observed that there has been a clash of interest between the rights of the
suspects and the working strategy of the police. The interest of the suspect lies in the
enjoyment of his freedom and liberty while the interest of the police lies in securing
the ends of the justice to the society. It is obvious such a clash of interest causes
damage to both the sides in the form of violation of the rights of the accused, on one
hand and obstruction to the work of police, on the other hand. The interest of the
suspect lies in securing his liberty while the police is bound by its professional culture
to provide services to the state.
In order to preserve the interest of both the sides it is important to marginalize their
functional domain. This study will not only analyse the condition of the rights of the
suspects but also define the legality of various interrogation strategies used by police.
37
There are certain universally accepted rights available to the police suspect like right
against torture or a cruel, inhuman or degrading treatment or punishment,111
right not to
be compelled to testify against oneself and the „right not to confess guilt or „Right
against Self-incrimination‟,112
right to be informed in detail regarding the nature and
cause of the charge brought by police,113
right to have the legal advice during the
interrogation process,114
right to remain silent.115
It is the duty of the every law
enforcement agency to guarantee these rights to the suspects/ accused. These rights are
internationally recognized by various international conventions and declarations.
It shall be the duty of the police officer to inform the suspect/arrestee regarding these
rights before starting the interrogation process.116
Jural postulate of a „Right‟ is „Duty‟
so, it is the legal as well as ethical duty of the state as well as its functionary i.e. police
to protect these rights of the suspect. In a legal system, where there police is not legally
bound to perform such duty the whip of ethics shall play its role.
In Universal Declaration On Human Rights (Paris, 1948), it was suggested that no
person shall be subjected to torture or a cruel, inhuman or degrading treatment or
punishment.117
While the European Convention On Human Rights (1953) explicitly
prohibits torture and inhumane or degrading treatment and punishment.118
the
convention also provide provision to have access to the legal representative.119
International Covenant on Civil and Political Rights (United Nations General
Assembly, (1976) provides provision for the „right not to be compelled to testify
against oneself and the „right not to confess guilt‟,120
this right explicitly provides a
way for the right against torture, cruel and inhumane treatment or punishment.121
The
covenant also provide with the right to be informed in detail regarding the nature and
cause of the charge brought by police.122
It also provides provision to have the legal
advice during the pre trial process.123
111
Art. 5, Universal Declaration Of Human Rights , (1948) 112
Art. 14(3)(g), International Covenant on Civil and Political Rights, (1976). 113
Art. 14(3)(a), International Covenant on Civil and Political Rights, (1976). 114
Art. 14(3)(b), International Covenant on Civil and Political Rights, (1976). 115
Miranda v. Arizona 384 U.S. 436 (1966) 116
Miranda Warning from Miranda v. Arizona, 384 U.S 436 (1966) 117
Art. 5, Universal Declaration Of Human Rights, 1948. 118
Art. 3, European Convention On Human Rights, 1953. 119
Art. 6(1), European Convention On Human Rights, 1953. 120
Art. 14(3)(g), International Covenant on Civil and Political Rights, 1976. 121
Art. 7, International Covenant on Civil and Political Rights, 1976. 122
Art. 14(3)(a), International Covenant on Civil and Political Rights, 1976. 123
Art. 14(3)(b), International Covenant on Civil and Political Rights, 1976.
38
American Convention on Human Rights (1978) states that the confession of an accused
will be held valid if it will be made without any coercion124
and the accused cannot be
compelled to be a witness against himself.125
Thus, the convention implicitly opposes any
kind of torture, cruel or inhumane treatment against the accused during the pre-trial
procedure. The convention also states that the accused shall be informed about the
charges against him in detail.126
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment (General Assembly Resolution, 1998) states that It shall be prohibited to
take undue advantage of the situation of a detained or imprisoned person for the purpose
of compelling him to confess, to incriminate himself otherwise or to testify against any
other person.127
It also says that no detained person while being interrogated shall be
subject to violence, threats or methods of interrogation that impair his capacity of
decision or his judgement.128
While the resolution also states that no person under any
form of detention or imprisonment shall be subjected to torture or to cruel, inhuman or
degrading treatment or punishment. No circumstance whatever may be invoked as a
justification for torture or other cruel, inhuman or degrading treatment or punishment.129
United Nations Human Rights Committee (Twenty-First Session), states that if any
evidence is obtained from the suspect by using coercion, force , threat, torture or cruel,
inhumane or degrading treatment, then such evidence shall be considered inadmissible.130
African Charter on Human and People‟s Rights (Nairobi, 1981) states that everyone shall
have right to live with dignity and have a recognised legal status and all forms of
degradation of human being, like torture, cruel treatment and degrading punishment shall
be prohibited.131
124
Art. 8(3), American Convention on Human Rights, 1978. 125
Art. 8(2)(g), American Convention on Human Rights, 1978. 126
Art. 8(2)(b), American Convention on Human Rights, 1978. 127
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
General, Assembly Resolution 43/173, Principle 21 para 1 from
<http://www.unhchr.ch/html/menu3/b/h_comp36.htm> retrieved on 18th
may 14:12 128
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
General, Assembly Resolution 43/173, Principle 21 para 2 from
http://www.unhchr.ch/html/menu3/b/h_comp36.htm retrieved on 18th may 14:16 129
Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment
General, Assembly Resolution 43/173, Principle 6 from
<http://www.unhchr.ch/html/menu3/b/h_comp36.htm> retrieved on 18th
may 14:21 130
21st Session, General Comment 13, Art. 14, para. 14,United Nations Human Rights Committee.
131 Art. 5, African Charter on Human and People‟s Rights, 1981.
39
3.2 UNITED KINGDOM
With The Police and Criminal Evidence Act 1984 (PACE)132
the working field of the
police was redefined on the grounds of certain technicalities. Clear cut provisions are
provided in the Act in order to protect the rights of the suspects. Guidelines have been
provided to the police in order to conduct their investigations and deal with suspects.
During the police interrogation/interview, process a greater emphasis shall be paid
upon the comforts of the suspect in order to avoid any sort of mental and physical
harassment.133
The interview shall take place in a properly ventilated room and the
suspect shall be provided with a 15 minutes of meal break after 2 hours of
questioning.134
Before beginning the interview with the suspect, the interviewing officer shall caution
the suspect that his statement can be recorded as a „significant statement‟ i.e.
evidence against him, in the court of law.135
It is the legal right of the suspect during the interview to consult his solicitor in
private.136
The suspect can do it over a telephone call as well as in person. This right
is available only to the suspect who is been interviewed within the premises of the
police station. It is the duty of the interviewing officer to avail him with this
facility.137
In Criminal Justice and Public Order Act 1994 the significant silence of the suspect,
over a question asked to him, shall be recorded as a failure of refusal to answer the
question. It cannot be recorded as a significant statement which is capable of being
used as an evidence against him.138
Violation of „right to remain silent‟ during the process of interrogation
Another important right reserved with the suspect in British Law is „Right to Remain
Silent‟. The suspect‟s right to remain silent is given pace in the Act of 1994.139
132
The Police and Criminal Evidence Act 1984 (PACE). 133
Code C paragraph 12, The Police and Criminal Evidence Act, 1984. 134
Id. 135
Code C Paragraph 16.5, The Police and Criminal Evidence Act, 1984. 136
Code C Paragraph 6, The Police and Criminal Evidence Act, 1984. 137
Para 3.1 and 3.2, Duty Solicitor Manual. 138
Code C Paragraph 11.4 & note 11 A , Criminal Justice and Public Order Act, 1994 139
Sec. 34 to 37, Criminal Justice and Public Order Act, 1994.
40
However, according to Lord Mushtill (1992), the right to remain silent “does not
denote any single right, but rather refers to a desperate group of immunities which
differ in nature, origin, incidence and importance”.140
There are six rights, which
could be categorised under „right to remain silent‟, they are:141
- A general immunity, possessed by all persons and bodies, from being compelled
on pain of punishment to answer questions posed by other persons or bodies.
- A general immunity, from being compelled on pain of punishment to answer
questions, the answers to which may incriminate them.
- A specific immunity, possessed by all persons under suspicion of criminal
responsibility whilst being interview by police officers or others in similar
positions of authority, from being compelled on pain of punishment to answer
questions of any kind.
- A specific immunity, to possess by accused persons, undergoing trial, from being
compelled from giving evidence, and from being compelled to answer questions
put to them in the dock.
- A specific immunity possessed by persons who has been charged with the
criminal offence, from having questions material to the offence addressed to them
by police officers or persons in a similar position of authority.
- A specific immunity, possessed by accused persons undergoing trial from having
adverse comment made on any failure to answer questions before the trial, or to
give evidence at the trial.
The European Convention On Human Rights 0f 1950 (ECHR) also recognises the
right to remain silent during police questioning. In John Murray case,142
the
European Court held:
“ …although not specifically mentioned in the Article 6 of the convention, there
can be no doubt that the right to remain silence in the police questioning and the
140
Lord Mustill, R. v. Director of Serious Fraud Office, (1992) 141
Id. 142
John Murray v. U.K, 22 E.H.R.R. 29 (1996).
41
privilege against self incrimination are generally recognised international standards
which lie at the heart of the notion of a fair procedure under Article 6.”
This decision leaves a way for deriving an adverse inference from the silent of the
suspect. An adverse inference could also be drawn from the silence of the suspect in
accordance to the evidences collected by the investigation agencies. But in
Saunders143
and Shannon144
cases, it was suggested that it does not mean that an
introduction of evidence for the purpose of incriminating the accused of transcripts of
statements made under compulsion.
3.3 UNITED STATES
Unlike the constitution of UK, US have a written constitution. The constitution of
US, itself, includes provisions regarding the rights of the suspects. The Fifth
Amendment in the constitution of US explicitly provides certain safeguards for the
suspects in the pre-trial process. Besides, there are various state laws, which also
provide procedural safeguards to the suspect during the pre-trial process.
The Fifth Amendment of the US constitution reads as follows:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless
on a presentment or indictment of a grand jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual service in time of War or public danger;
nor shall any person be subject for the same offence to be twice put in jeopardy of life
or limb; nor shall be compelled in any criminal case to be a witness against himself,
nor be deprived of life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensation.”145
The Fifth Amendment explicitly provides provisions for five main clauses i.e. grand
jury, double jeopardy, self-incrimination, due-process and just compensation.146
The
amendment also provides implicit provisions for the protection of the rights of the
suspects. The judiciary in various case laws has cited these provisions.
143
Saunders v. U.K , 23 E.H.R.R. 313 (1996). 144
Shannon v. U.K, 03 APPLN. 6563 (2005). 145
Fifth Amendment, THE CONSTITUTION OF UNITED STATES, 1791 retrieved at http://legal-
dictionary.thefreedictionary.com/fifth+amendment on 20th
of April 2014 at 11:28AM 146
Hickok, Eugene W., The Bill Of Rights: Original Meaning And Current Understanding, University
of Virginia LR, ( 1991).
42
The amendment provides the provision against self-incrimination. This provision
provides a right against compelled self-incrimination to the accused during the pre-
trial process.147
Under this provision, the suspect is given privilege to refuse to
answers the questions, which are asked with the intention to seek self –incriminatory
response from him.148
This legal protection to the suspect was provided in order to
protect him from the undue torture of the police during questioning to obtain
information and confessions.149
The Fifth Amendment also limits the conduct of the police officers during custodial
interrogations. It implicitly provides provision for non-admission of evidences, which
are obtained by illegal means or torture.150
The Supreme Court of US has to
repeatedly interpreted the Fifth Amendment in a number of cases of custodial torture
and extraction of evidences by illegal means.151
The court has also laid a number of
guidelines in the favour of the accused and to provide direction to the law
enforcement agencies in order to conduct interrogation in a more humanly and legal
manner.152
These provisions conjointly provides a provision of „right to remain silent‟
to the suspect.153
3.4 INDIA
The constitution of India provides with the equal protection of law to all citizens of
the country,154
which means that all citizens of the country shall be treated equally in
the eyes of the law. The Constitution also provides with the provision for Right to life
and Liberty for the citizens.155
Such a liberty could be taken away only by the
procedure established by law.156
It is implicit that the „established procedure‟ in order
to take away the liberty of the individual shall be „just and fair‟.157
147
Self-Incrimination, Privilege Against, Barrons Law Dictionary, 434 (2nd
ed. 1984) 148
Ohio v. Reiner, 532 US 17 (2001) 149
Amar, Akhil Reed, America’s Constitution, Random House Publication, New York Crim LR, 329, (2005). 150
Brown v. Mississippi, 297 U.S. 278 (1936) 151
Miranda v. Arizona, 384 U.S. 436 (1966). 152
Id. 153
Id. 154
Art. 14, THE CONSTITUTION OF INDIA, 1950. 155
Art. 21, THE CONSTITUTION OF INDIA, 1950. 156
Id. 157
Maneka Gandhi v. UOI, AIR 1978 SC 552.
43
The Constitution explicitly mentions the „Right against Self-incrimination‟ for the
people of the country.158
These provisions together provide a way for the
establishment of a just and fair criminal justice system in the county in the favour of
the suspect. These provisions are further codified in the Code of Criminal Procedure,
1973.
The Code of Criminal Procedure states that the suspect is not bound to give self-
incriminatory statements to the police officer during the process of interrogation.159
The code also provide provision for lawful arrest of the suspect by the police which
requires disclosure of the proper identity on the part of the police officer,160
preparation of the arrest memorandum,161
information to the relatives/friends of the
arrestee.162
The code also provides a provision for establishing police control rooms,
at district as well as state level, in order to display the details regarding the arrest of a
person.163
This code also has the provision for providing the legal advice to the
suspect or the arrestee during the process of the interrogation, the suspect is entitled
to meet his advocate during the interrogation process.164
Besides so many statutory provisions and legal guidelines, it is clearly visible from
the case law study (as discussed in chapter 1) that there have been a large number of
violations of the rights of the accused by the police during the process of the
interrogation. To know the rate of successful implementation of these statutes and the
judicial guideline and in order to prove the proposed hypothesis I have conducted an
empirical study and the results of the empirical study are discussed in detail in the
next chapter.
158
Art. 20(3), THE CONSTITUTION OF INDIA, 1950. 159
Sec. 161(2), Code of Criminal Procedure, 1973 . 160
Sec. 41B(a), Code of Criminal Procedure, 1973, inserted by Amendment Act. 5 of 2009. 161
Sec. 41B(b), Code of Criminal Procedure, 1973, inserted by Amendment Act. 5 of 2009. 162
Sec. 41B(c), Code of Criminal Procedure, 1973 inserted by Amendment Act. 5 of 2009. 163
Sec. 41C, Code of Criminal Procedure, 1973, inserted by Amendment Act. 5 of 2009. 164
Sec. 41D, Code of Criminal Procedure, 1973, inserted by Amendment Act. 5 of 2009.
44
CHAPTER 4
EMPIRICAL SURVEY ON VIOLATION OF RIGHTS OF
THE SUSPECT BY POLICE INTERROGATION
STRATEGIES
4.1 FREQUENCY TABLES OF POLICE OFFICERS
Q1) Since how many years are you serving in police?
A) Less than 5 yrs
B) 5 yrs to 15 yrs
C) 15 yrs to 25 yrs
D) More than 25 yrs
Frequency table 1
Service Frequency Percent Valid Percent Cumulative
Percent
less than 5 years 3 10.3 10.3 10.3
5 years to 15 years 8 27.6 27.6 37.9
15 years to 25 years 12 41.4 41.4 79.3
more than 25 years 6 20.7 20.7 100.0
Total 29 100.0 100.0
Pie chart 1
From the above table it is evident that out of the total number of police officers
questioned, 41.4% of the officers are working in the police force from 15 years to 25
years and 10.3% of the officers have not completed 5years in the force since their
recruitment. Which further reveals that a majority of the total sample belongs to the
experienced class, who are working in the force from more than 15 years.
45
Q2) How much time do you spend at police station?
A) Less than 5 hours
B) 5 hours to 10 hours
C) 10 hours to 24 hours
D) More than 24 hours
Frequency table 2
Workhours Frequency Percent Valid Percent Cumulative
Percent
10 hours to 24 hours 18 62.1 62.1 62.1
more than 24 hours 11 37.9 37.9 100.0
Total 29 100.0 100.0
Pie chart 2
From frequency table 2 it is evident that 62.1% of the total police officers questioned
spent 10 hours to 24 hours working in the police station, while 37.9% of the total
number of the police officers questioned work more than 24 hours in the police
station. There is no police officer within the collected sample who work less than 10
hours in the police station.
46
Q3) What is your current educational qualification?
A) 12th
B) Graduation
C) Post- graduation
D) Doctorate
Frequency table no. 3
Education Frequency Percent Valid Percent Cumulative
Percent
12th
8 27.6 27.6 27.6
Graduation 16 55.2 55.2 82.8
post-graduation 5 17.2 17.2 100.0
Total 29 100.0 100.0
Pie chart 3
From the above frequency table it is evident that 55.2% of the total number of the
police officers questioned are graduated, while 27.6% of the total sample has
completed 12th
and only 17.2% of the total sample has pursued post-graduation
studies. While non has done doctorate. The data shows that a high percentage of the
total samples is well educated and knowledgeable.
47
Q4) Do you know all the guidelines of D.K Basu case?
A) Yes, all of them
B) No, none of them
C) Some of them
D) I was not taught any provision of CrPc in training
Frequency table no. 4
Guidelines Frequency Percent Valid Percent Cumulative
Percent
yes, all of them 22 75.9 75.9 75.9
no, none of them 3 10.3 10.3 86.2
some of them 4 13.8 13.8 100.0
Total 29 100.0 100.0
Pie chart 4
The frequency table 4 shows that 75.9% of the total police officers interviewed know
all the guidelines of the D.K. Basu case, while 13.8% of the officers know only some
of the guidelines of D.K. Basu. Only, 10.3% of them do not know any of the
guideline mentioned in D,K, Basu case. Which shows that most of the police officers
from the collected sample are aware of the D.K. Basu guidelines on arrest and
detention.
48
Q5) Rate how stressful your job is on the scale of 1 to 10, where 1 being not
stressful at all and 10 being the most stressful.
A) 1 to 3
B) 3 to 6
C) 6 to 9
D) Above 9
Frequency table 5
Stress Frequency Percent Valid Percent Cumulative
Percent
1 to 3 1 3.4 3.4 3.4
3 to 6 1 3.4 3.4 6.9
6 to 9 12 41.4 41.4 48.3
above 9 15 51.7 51.7 100.0
Total 29 100.0 100.0
Pie chart 5
In the frequency table 5 it is evident that 51.7% of the total number of police officers
interviewed faces a high level of stress i.e. more than 9 on the scale of 10. While
41.4% of officers interviewed, face above moderate level of stress in their job i.e 6 to
9 on the scale of 10. On the other hand only 3.4 % of the officers face a moderate
level of stress i.e 3 to 6 on the scale of 10 and only 3.4% of the officers face less than
moderate level of stress in their job i.e. 1 to 3 on the scale of 10. It is evident from the
frequency table that the majority of the officers interviewed faces very high level of
stress in their job.
49
Q6) Are you often taught about the procedure which is to be followed while
making arrest and interrogation?
A) Yes, in every 6 months
B) Yes, in every 1 year
C) Yes, only during initial training period after recruitment
D) I have never been taught
Frequency table 6
Training Frequency Percent Valid
Percent
Cumulative
Percent
Yes, in every 6 months 3 10.3 10.3 10.3
Yes, in every 1 year 10 34.5 34.5 44.8
Yes, only in the initial training period after recruitment 15 51.7 51.7 96.6
I have never been taught 1 3.4 3.4 100.0
Total 29 100.0 100.0
Pie chart 6
It is evident from frequency table 6 that 51.7% of the police officers interviewed were
taught the procedure regarding arrest and interrogation only during their initial
training days after recruitment, while, 35.5% of the officers said that they are been
taught the procedure of arrest and interrogation after every 1 year, while 10.3% of the
total officers said that they are been taught the procedure of arrest and interrogation in
every 6 months. Only 3.4% of the police officers from the total sample interviewed
said that they have never been taught the procedure of arrest and interrogation. From
the above statistical data we can assert that the majority of the sample interviewed
was taught the procedure of arrest and interrogation only during their initial period of
the training soon after their recruitment.
50
Q7) For making an arrest, on an average, how many police officers are
required?
A) 1-2
B) 2-3
C) 3-4
D) More than 4
Frequency table 7
Officers Frequency Percent Valid Percent Cumulative
Percent
1-2 4 13.8 13.8 13.8
2-3 19 65.5 65.5 79.3
3-4 4 13.8 13.8 93.1
more than 4 2 6.9 6.9 100.0
Total 29 100.0 100.0
Pie chart 7
From the frequency table 7 it is evident that 65.5% of the total number of police
officers interviewed responded that, on an average, 2-3 officers are required to make
an arrest. While, 13.8 % of the respondents revealed that 3-4 officers are required to
conduct an arrest and 13.8% of the respondents revealed that about 1-2 officers are
required to make an arrest. And only 6.9% of the total number of respondents
revealed that more than 4 officers are required to conduct an arrest. So, it is evident
that majority of the sample believe that, on an average, 2-3 police officers are
required to conduct an arrest.
51
Q8 ) In how many cases, on an average, do you face a huddle or counter force
on the part of the arrestee or his relatives/friends?
A) In less than 3 out of every 10 cases
B) In 5 out of every 10 cases
C) In 9 out of every 10 cases
D) In all the cases
Frequency table no.8
Huddles Frequency Percent Valid
Percent
Cumulative
Percent
in less than 3 out of every 10 cases 11 37.9 37.9 37.9
in 5 out of every 10 cases 9 31.0 31.0 69.0
in 9 out of every 10 cases 4 13.8 13.8 82.8
in all the cases 5 17.2 17.2 100.0
Total 29 100.0 100.0
Pie chart no.8
From the frequency table no.8 it is evident that 37.9% of the total number of the
respondents face violence and counter force in every 3 out of 10 cases, on behalf of
the arrestee and his relatives, while conducting the arrest. On the other hand, 31% of
the respondents face violence in every 5 out of 10 cases, while conducting the arrest.
While, 13.8% of the total respondents face violence and counter force in every 9 out
of 10 case, while making arrest. And 17.2% of the respondents face violence and
counter force in every case, while conducting the arrest.
52
Q9) On an average, how many hours do you need to continuously interrogate
a suspect in a heinous crime?
A) Less than 4 hours
B) 4 hours to 6 hours
C) 6 hours to 8 hours
D) More than 8 hours
Frequency table no.9
Time Frequency Percent Valid Percent Cumulative Percent
less than 4 hours 8 27.6 27.6 27.6
4 hours to 6 hours 9 31.0 31.0 58.6
6 hours to 8 hours 2 6.9 6.9 65.5
more than 8 hours 10 34.5 34.5 100.0
Total 29 100.0 100.0
Pie chart no.9
From the frequency table no.9 it is evident that 34.5% of the respondents revealed
that they conduct interrogation for more than 8 hours continuously in a heinous case.
On the other hand 31% of the respondents revealed that they conduct continues
interrogation of 4 hours to 6 hours in a heinous case. While, 27.6% of the respondents
revealed that they conduct interrogation for less than 6 hours continuously while, only
6.9% of the respondents revealed that they conduct interrogation for 6 hours to 8
hours continuously in a heinous case. So, it can be asserted that majority of the
respondents conduct interrogation for more than 8 hours continuously in the heinous
crimes.
53
Q10) While interrogating a suspect in a heinous crime like rape, do you
provide him with following facilities:
1) Air conditioner room
2) Quick legal help, even before taking him to the court
3) Permission to meet his acquaintances for moral support, within 24 hours of
arrest
A) All of these B)Only 2 and 3 C) Only 2 d) None of these
Frequency table no.10
Facilities Frequency Percent Valid Percent Cumulative Percent
all of these 1 3.4 3.4 3.4
only 2 and 3 16 55.2 55.2 58.6
only 2 6 20.7 20.7 79.3
none of these 6 20.7 20.7 100.0
Total 29 100.0 100.0
Pie chart no.10
From the frequency table no.10 we can enumerate that 55.5% of the respondent are in
favour of providing legal help as well as permission to meet relatives to the arrestee
during interrogation. While, 20.7% of the respondents are in favour of providing legal
help only. On the other hand, 20.7% of the respondents are not in favour of providing
any of the above mentioned facilities to the arrestee during the interrogation and 3.4%
of the respondents agree to provide even an air- conditioner to the arrestee which
reveals that they are not familiar with the guidelines of D.K. Basu case.
54
Q11) In your opinion what shall be an ideal punishment for an offender of rape?
A) Hang till death
B) Mutilating
C) Rehabilitation
D) Beaten by public till he dies
Frequency table no.11
Valid
Punishment Frequency Percent Valid Percent Cumulative
Percent
hang till death 23 79.3 79.3 79.3
Mutilating 2 6.9 6.9 86.2
Rehabilitation 2 6.9 6.9 93.1
beaten by public till death 2 6.9 6.9 100.0
Total 29 100.0 100.0
Pie chart no.11
From the frequency table no.11 it is evident that 79.3% of the respondents are in
favour of death sentence for the rape offenders, while only 6.9% of the total number
of respondents interviewed opted in favour of rehabilitation of the rape offenders.
Which shows a high degree of hate in the eyes of the respondents for the crime, as
well as for the criminals of such crimes.
55
4.2 FREQUENCY TABLE TABLES FOR POLICE ARRESTEES
Q1) What was your age at the time of your Arrest?
A) 12 years to 18 years
B) 18 years to 30 years
C) 30 years to 50 years
D) Above 50 yrs
Frequency table no.1
Age Frequency Percent Valid Percent Cumulative
Percent
18 years to 30 years 7 36.8 36.8 36.8
30 years to 50 years 8 42.1 42.1 78.9
above 50 years 4 21.1 21.1 100.0
Total 19 100.0 100.0
Pie chart no.1
From the frequency table no.1 it is evident that 42.1% of the respondents are 30 years
to 50 years of age. While, 36.8% of the respondents are 18 years to 30 years of age,
and only 21.1% of the respondents are above 50 years of age. Which shows that
arrestees between 30 years to 50 years of age are highest in number.
56
Q2) What was the approximate number of police officers present at the time
of your arrest?
A) 1 to 2
B) 2 to 3
C) 3 to 4
D) More than 4
Frequency table no.2
Officers Frequency Percent Valid Percent Cumulative Percent
1 to 2 1 5.3 5.3 5.3
2 to 3 9 47.4 47.4 52.6
3 to 4 7 36.8 36.8 89.5
more than 4 2 10.5 10.5 100.0
Total 19 100.0 100.0
Pie chart no.2
From the frequency table no.2 it is evident that 47.4% of the respondents revealed
that the number of the arresting officers was from 2 to 3 when their arrest was made.
While, 36.8% of the respondent revealed that the number of the arresting officers was
3 to 4. On the other hand 10.5% of the respondents revealed that the number of
arresting officers was more than 4. While 5.3% revealed that the number of the
arresting officers was 1 to 2. So, we can enumerate that the maximum number of the
respondents revealed that the number of the arresting officers present at the time of
their arrest was 2 to 3.
57
Q3) Did the arresting officer bearing accurate, visible and clear identification
marks on their uniforms?
A) Yes
B) No
C) Yes, they were in uniforms but did not bear any identity plates.
Frequency table no.3
Uniforms Frequency Percent Valid Percent Cumulative
Percent
Yes 8 42.1 42.1 42.1
No 9 47.4 47.4 89.5
yes, they were in uniforms but they
did not bear any identity plates 2 10.5 10.5 100.0
Total 19 100.0 100.0
Pie chart no.3
From the frequency table no.3 it is evident that 47.4% of the respondents revealed
that arresting officer did not bear an accurate, visible and clear identification marks
on their uniforms. While, 42.1% of the respondents revealed that the arresting officer
bear accurate, visible and clear identification marks on their uniforms. On the other
hand, 10.5% of the total respondent interviewed revealed that the arresting officers
were wearing uniforms but they did not bear clearly visible identity plates. So, we can
enumerate that the maximum number of the respondent revealed that the arresting
officer did not bear an accurate, visible and clear identification marks on their
uniforms.
58
Q4) Were you informed about the grounds of your arrest, before you were arrest?
A) Yes
B) No
C) No, they did not tell in spite of asking.
Frequency table no.4
Grounds Frequency Percent Valid Percent Cumulative
Percent
Yes 8 42.1 42.1 42.1
No 5 26.3 26.3 68.4
no, they did not tell in spite
of asking 6 31.6 31.6 100.0
Total 19 100.0 100.0
Pie chart no.4
From the frequency table no.4 it is clearly evident that 42.1% of the respondents were
told the grounds of their arrest, while, 26.3% of the respondents were not even told
the grounds of their arrest by the arresting officers. On the other hand, 31.6% of the
respondents revealed that they were not told about the ground of their arrest in spite
of their asking. We can enumerate that 57.9% of the respondents were not told about
the grounds of their arrest. We can say maximum number of respondents were not
told about the grounds of their arrest.
59
Q5) Did the police officers prepared a memorandum while making your
arrest in the presence of a witness?
A) Yes, they did.
B) No, they did not.
C) Yes, memorandum was prepared but there was no witness.
Frequency table no.5
Memorandum Frequency Percent Valid Percent Cumulative
Percent
yes, they did 8 42.1 42.1 42.1
no, they did not 7 36.8 36.8 78.9
yes memorandum was prepared
but there was no witness 4 21.1 21.1 100.0
Total 19 100.0 100.0
Pie chart no.5
From the frequency table no.5 it is clearly evident that 42.1% of the respondent
revealed that arresting officers did prepared an arrest memorandum in the presence of
a witness, while, 36.8% of the respondent revealed that the arresting officer did not
prepared any arrest memorandum while making their arrest. And 21.4% of the
respondents revealed that arresting officer did prepared an arrest memorandum but
any witness was not there. So, we can enumerate that in 57.9% of cases either arrest
memorandum was not prepared or an illegal arrest memorandum was prepared by the
arresting officers.
60
Q6) Did they inform any of your friend or relative regarding your arrest?
A) Yes, they did.
B) No, they did not.
C) No, they did not and neither allowed me to do so.
Frequency table no.6
Information Frequency Percent Valid Percent Cumulative
Percent
yes, they did 11 57.9 57.9 57.9
no, they did not 3 15.8 15.8 73.7
no, they did not and neither
allowed me to do so 5 26.3 26.3 100.0
Total 19 100.0 100.0
Pie chart no.6
From the frequency table no.6 it is evident that 57.9% of the respondents revealed
that the police did informed their relative/friend regarding their arrest, while, 15.8%
of the respondent revealed that police did not informed their relative/friend regarding
their arrest. And 26.3% of the respondents revealed that neither the police informed
their relatives/friend not did the respondent was allowed to do so. We can enumerate
that in 42.1% of the cases police did not informed the relative/friend of the informant
regarding his arrest. Though, in maximum number of cases police did informed the
relative/friend but in considerable number of cases police failed to do so.
61
Q7) Soon before the interrogation process, were you informed about your
right to have a legal advisor?
A) Yes, they did inform me.
B) No, they did not inform me.
C) No, neither they inform me and nor did they allowed to call my legal advisor.
Frequency table no.7
Legal advice Frequency Percent Valid Percent Cumulative
Percent
yes, they did inform me 2 10.5 10.5 10.5
no, they did not inform me 10 52.6 52.6 63.2
no, neither they inform me
nor did they allowed to call
my legal advisor
7 36.8 36.8 100.0
Total 19 100.0 100.0
Pie chart no.7
From the frequency table no.7 it is clearly evident that 52.6% of the respondents were
not informed about their right to have a legal advisor during their interrogation.
While, 36.8% of the respondents were neither informed and nor allowed to use the
right to meet a legal advisor. Only 10.5% of the respondents were informed about
their right to meet a legal advisor. We can enumerate that 89.5% of the respondents
were either not informed about their right to have legal advisor or they were not
allowed to use it.
62
Q8) Were you informed about your „right to remain silent‟?
A) Yes, they did.
B) No, they did not.
Frequency table no.8
Silent Frequency Percent Valid Percent Cumulative Percent
yes, they did 1 5.3 5.3 5.3
no, they did not 18 94.7 94.7 100.0
Total 19 100.0 100.0
Pie chart no.8
From the frequency table no.8 it is evident that 94.7% of the respondents were not
informed about their right to remain silent during the interrogation process. While
only 5.3% of the respondents were informed about their right to remain silent during
the interrogation process. We can enumerate that maximum number of the
respondents were on informed about their right to remain silent during the
interrogation process.
63
Q9) For how many hours were you kept in the police custody after your arrest?
A) Less than 5 hours
B) 5 hours to 15 hours
C) 15 hours to 24 hours
D) More than 24 hours
Frequency table no.9
Custody Frequency Percent Valid Percent Cumulative
Percent
5 hours to 15 hours 2 10.5 10.5 10.5
15 hours to 24 hours 9 47.4 47.4 57.9
more than 24 hours 8 42.1 42.1 100.0
Total 19 100.0 100.0
Pie chart no.9
From the frequency table no.9 it is clearly evident that 47.4% of the respondents were
kept in custody for 15 to 24 hours, while 42.1% of the respondents were kept in
custody for more than 24 hours. Only 10.5% of the respondents were kept in custody
for 5 to 15 hours. We can clearly enumerate that a considerable number of
respondents were kept in custody ever after 24 hours.
64
Q10) For how many hours you were interrogated continuously?
A) Less than 5 hours
B) 5 hours to 15 hours
C) 15 hours to 24 hours
Frequency table no.10
Interrogation Frequency Percent Valid Percent Cumulative
Percent
less than 5 hours 7 36.8 36.8 36.8
5 hours to 15 hours 11 57.9 57.9 94.7
15 hours to 24 hours 1 5.3 5.3 100.0
Total 19 100.0 100.0
Pie chart no.10
From the frequency table no.10 it is clearly evident that 57.9% of the respondents
were interrogated continuously for 5 hours to 15 hours. While, 36.8% of the
respondents were interrogated continuously for less than 5 hours. And only 5.3% of
the respondents were interrogated continuously for 15 hours to 24 hours. So, we can
enumerate that maximum number of respondents were continuesly interrogated for 5
hours to 15 hours.
65
Q11) Was any kind of physical force used against you during interrogation?
A) Yes
B) No
Frequency table no. 11
force Frequency Percent Valid Percent Cumulative Percent
yes 14 73.7 73.7 73.7
no 5 26.3 26.3 100.0
Total 19 100.0 100.0
Pie chart no.11
It is clearly evident from the frequency table no.11 that some kind of force was used
against 73.7% of the respondents during the process of interrogation, while, no force
was used against 26.3% of the respondents during the process of interrogation. We
can clearly enumerate that some kind of force was used against the maximum number
of the respondents during the process of interrogation.
66
Q12) Was the „interrogation room‟ properly ventilated and clean?
A) Yes.
B) No
Frequency table no.12
Hygiene Frequency Percent Valid Percent Cumulative Percent
yes 14 73.7 73.7 73.7
no 5 26.3 26.3 100.0
Total 19 100.0 100.0
Pie chart no.12
From the frequency table no.12 it is evident that 73.7% of the respondents were
interrogated in a ventilated and clean room, while, 23.3% of the respondent were
interrogated in an unclean and unventilated room. We can enumerate that still a
considerable number of suspects are interrogated in an unclean and unventilated
room.
67
Q13) Rate how stressful the process of interrogation was on the scale of 1 to 10,
where 1 being not stressful at all and 10 being the most stressful.
A) 1 to 3
B) 3 to 6
C) 6 to 9
D) Above 9
Frequency table no.13
Stressful Frequency Percent Valid Percent Cumulative Percent
6 to 9 4 21.1 21.1 21.1
above 9 15 78.9 78.9 100.0
Total 19 100.0 100.0
Pie chart no.13
From the frequency table no.13 it is clearly evident that the interrogation process was
very stressful i.e. more than 9 on the scale of 1 to 10, the 78.9% of the respondents.
While, the stress level of 21.1% of the respondents was above average i.e. between 6
to 9 on the scale of 1 to 10, during the interrogation process. So, we can enumerate
that the interrogation process was very stressful for the maximum number of
respondents.
68
Q14) During the questioning were you forced to give „self-incriminatory‟
statements or „fake confession‟?
A) Yes
B) No
C) Yes, but force was not used.
Frequency table no.14
Self-Incrimination Frequency Percent Valid Percent Cumulative Percent
Yes 14 73.7 73.7 73.7
yes, but force was not used 5 26.3 26.3 100.0
Total 19 100.0 100.0
Pie chart no.14
From the frequency table no.14 it is clearly evident that 73.7% of the respondents
were forced to give self-incriminatory statements during the process of interrogation.
While 26.3% of the respondents were made to give self incriminatory statements
without the use of any force. So, we can enumerate that all the respondents were
made to give self incriminatory statements while most of them were forced to do so.
69
Q15) When were you produced before the court?
A) Within 12 hours of arrest
B) Within 12 to 24 hours of arrest
C) Within 24 hours to 48 hours of arrest
D) After 48 hours of arrest
Frequency table no.15
Court Frequency Percent Valid
Percent
Cumulative
Percent
12 hours to 24 hours of arrest 2 10.5 10.5 10.5
24 hours to 48 hours of arrest 16 84.2 84.2 94.7
after 48 hours of arrest 1 5.3 5.3 100.0
Total 19 100.0 100.0
Pie chart no.15
From the frequency table no.15 it is evident that 84.2% of the respondents were taken
to the court after 24 hours of their arrest. While, 5.3% of the respondents were taken
to the court even after 48 hours of their arrest. Only 10.5% of the respondents were
taken to the court within 24 hours of their arrest. So, we can enumerate that 89.5% of
the respondents were taken to the court after the expiry of the prescribed time i.e. 24
hours.
70
Q16) Are you aware of the rights of an arrestee?
A) Yes
B) No
Frequency table no.16
Awareness Frequency Percent Valid Percent Cumulative Percent
Yes 5 26.3 26.3 26.3
No 14 73.7 73.7 100.0
Total 19 100.0 100.0
Pie chart no.16
From the frequency table no.16 it is evident that 73.7% of the respondents are not
aware of the rights of the suspects during police interrogation. While, only 27.3% of
the respondents are aware of the rights of the suspects during the police interrogation
process. We can say that the maximum number of the respondents are not aware of
the rights of the suspects during the interrogation process.
71
4.3 MAJOR FINDINGS OF THE STUDY
The present research on „violation of rights of the suspects by the police authorities‟
has brought out many important findings, which are broadly categorized under
separate titles as understated:
Findings from the police officers
- 62.1% of the respondents are serving in the police from more than 15 years.
- 37.9% of the respondents have to work even more than 24 hours in the police
station.
- 55.2% of the respondents are graduated, so we can enumerate that they have good
understand of the law.
- 75.9% of the respondents have the knowledge of all the guidelines given in D.K
Basu case, while 13.8% of the respondents have knowledge of some of the
guidelines given in D.K Basu case.
- 51.7% of the respondents find their job very stressful i.e, above 9 on the scale of 1
to 10, where 1 being not stressful at all and 10 being very stressful.
- 51.7% of the total respondents were taught the procedure regarding arrest and
detention only during their initial period of training after the recruitment after that
they were not taught about it.
- 65.5% of the respondents revealed that on an average about 2-3 police officers are
required to make an arrest.
- 37.9% of the respondents revealed that, on an average, in 3 out of every 10 case
of arrest they have to face violence or some kind of physical huddle on the part of
the arrestee or his relatives/friends.
- 34.5% of the respondents revealed that they have to interrogate the suspect of a
heinous crime, continuously, for more than 8 hours.
- 55.5% of the respondent are in favour of providing legal help as well as
permission to meet relatives to the arrestee during interrogation
72
Findings from the police suspects/arrestees
- 63.2% of the respondents are above the age of 30, out of which, 21.1% are above
the age of 50.
- 47.4% of the respondents revealed that about 2 to 3 police officers were present
during their arrest.
- 47.4% of the respondents revealed that the arresting officer did not bear a clear
and visible identification tag during their arrest.
- 57.9% of the respondents were not told about the grounds of their arrest, out of
which 31.6% of the respondents were not told in spite of asking.
- 36.8% of the respondents revealed that no memorandum was prepared during
their arrest and 21.1% of the respondents revealed that memorandum was
prepared in the absence of any witness. So, we can enumerate that in the case of
57.9% of the witness either no memorandum was prepared or an illegal
memorandum was prepared.
- 42.1% of the cases police did not informed the relative/friend of the informant
regarding his arrest. Though, in maximum number of cases police did informed
the relative/friend but in considerable number of cases police failed to do so.
- 52.6% of the respondents were not informed about their right to have a legal
advisor during their interrogation.
- Only 10.5% of the respondents were informed about their right to meet a legal
advisor.
- 89.5% of the respondents were either not informed about their right to have legal
advisor or they were not allowed to use it.
- 94.7% of the respondents were not informed about their right to remain silent
during the interrogation process.
- 42.1% of the respondents were kept in custody for more than 24 hours.
- 57.9% of the respondents were interrogated continuously for 5 hours to 15 hours.
73
- Some kind of force was used against 73.7% of the respondents during the process
of interrogation.
- 23.3% of the respondent were interrogated in an unclean and unventilated room.
- The interrogation process was very stressful, i.e. more than 9 on the scale of 1 to
10, for the 78.9% of the respondents. While, the stress level of 21.1% of the
respondents was above average i.e. between 6 to 9 on the scale of 1 to 10, during
the interrogation process.
- 73.7% of the respondents were forced to give self-incriminatory statements during
the process of interrogation. While 26.3% of the respondents were made to give
self incriminatory statements without the use of any force. So, we can enumerate
that all the respondents were made to give self evidently evidence while most of
them were forced to do so.
- 89.5% of the respondents were taken to the court after the expiry of the prescribed
time i.e. 24 hours.
- 73.7% of the respondents are not aware of the rights of the suspects during police
interrogation. We can say that the maximum number of the respondents are not
aware of the rights of the suspects during the interrogation process.
74
CHAPTER 5
VERIFICATION OF THE HYPOTHESIS
Hypothesis 1- The police subject the suspect to force and torture in order to get
self-incriminatory statements and violate his right against self-incrimination.165
It is evident from the collected data166
that some kind of force was used by the police
officers against the 73.7% of the respondents during the process of the interrogation.
which proves the physical abuse on the part of the interrogation authorities to the
suspect. While, 23.3% of the suspects revealed that the room in which they were
interrogated was not even clean and ventilated. 167
From which we can enumerate the
degree of mental harassment the suspects face during the process of the interrogation. It
is also evident that 73.7% of the respondents were made to give self-incriminatory
statements by the application of forceful interrogation techniques on them,168
while
26.7% of them revealed that they were made to give self-incriminatory statements
without the use of any force.169
It is clear from the data that all of the respondents were
made to give self-incriminatory statements, while most of them were made to do so by
forceful methods.
It is also evident that 94.7% of the respondents were not informed about their right to
remain silent during the interrogation process. While only 5.3% of the respondents
were informed about their right to remain silent during the interrogation process. We
can enumerate that maximum number of the respondents were on informed about their
right to remain silent during the interrogation process.170
It is clearly evident that the interrogation process was very stressful i.e. more than 9 on
the scale of 1 to 10, the 78.9% of the respondents. While, the stress level of 21.1% of
the respondents was above average i.e. between 6 to 9 on the scale of 1 to 10, during
the interrogation process. So, we can enumerate that the interrogation process was very
stressful for the maximum number of respondents.171
165
Art. 20(3), THE CONSTITUTION OF INDIA, 1950 and Sec. 161(2), Code of Criminal Procedure, 1973. 166
Frequency table no.11 167
Frequency table no. 12 168
Frequency table no. 14 169
ibid 170
Frequency table no. 8 171
Frequency table no. 13
75
Thus, it can be concluded that above hypothesis is accepted.
The reason behind use of force by the police officers could be traced in their
occupational culture. It is evident that 51.7% of the total number of police officers
interviewed faces a high level of stress i.e. more than 9 on the scale of 10. While
41.4% of officers interviewed, face above moderate level of stress in their job i.e 6 to
9 on the scale of 10. On the other hand only 3.4 % of the officers face a moderate
level of stress i.e 3 to 6 on the scale of 10 and only 3.4% of the officers face less than
moderate level of stress in their job i.e. 1 to 3 on the scale of 10. It is evident from the
frequency table that the majority of the officers interviewed faces very high level of
stress in their job.172
We can enumerate that high level of stress in the job brings
frustration and leads to a violent behaviour. Such an occupational conditioning effects
their work and they tends to behave more violently during the interrogation process.
It is also evident that 62.1% of the total police officers questioned spent 10 hours to
24 hours working in the police station, while 37.9% of the total number of the police
officers questioned work more than 24 hours in the police station. There is no police
officer within the collected sample who works less than 10 hours in the police
station.173
Thus, we can say that long working hours also tends to affect the level of
humanity in their behaviour and it directly effects their relation with the suspect
during the process of the interrogation.
Another reason for their violent behaviour during the process of the interrogation is,
their high level of hate towards the criminal as it is clearly evident that 79.3% of the
respondents are in favour of death sentence for offenders of the heinous crime. This
shows the attitude of police supporting „crime control‟ model by giving more
importance to conviction and punishment.174
172
Frequency table no. 5 173
Frequency table no. 2 174
Frequency table no. 11
76
Hypothesis 2- There is a grave violation of, „Right to have a legal advisor during
the pre-trial process‟,175
176
on the part of the police.
It is clearly evident that 52.6% of the respondents were not informed about their right
to have a legal advisor during their interrogation. While, 36.8% of the respondents
were neither informed and nor allowed to use the right to meet a legal advisor. Only
10.5% of the respondents were informed about their right to meet a legal advisor. We
can enumerate that 89.5% of the respondents were either not informed about their
right to have legal advisor or they were not allowed to use it.177
Thus, it can be concluded that the above hypothesis is accepted.
The reason for the violation of this right of suspect is the lack of awareness among
the police officers. Most of them are not aware of the law and the statute. It is evident
that 51.7% of the total number of the police officers were taught the procedure
regarding arrest and interrogation only during their initial training days after
recruitment, while, 35.5% of the officers said that they are been taught the procedure
of arrest and interrogation after every 1 year, while 10.3% of the total officers said
that they are been taught the procedure of arrest and interrogation in every 6 months.
Only 3.4% of the police officers said that they have never been taught the procedure
of arrest and interrogation.178
Thus, we can assert that the majority of the sample interviewed was taught the
procedure of arrest and interrogation only during their initial period of the training
soon after their recruitment. So, they are not aware of the latest amendments in the
Code of Criminal Procedure, 1973, as Section 41D (right to have a legal advisor) was
added through amendment in 2009.
Hypothesis 3- Most of the interrogation officers are unaware of the guidelines
laid down in D.K. Basu case.
It is evident from the empirical study 47.4% of the respondents revealed that arresting
officer did not bear an accurate, visible and clear identification marks on their
uniforms. While, 42.1% of the respondents revealed that the arresting officer bear
175
Art. 14(3)(b), International Covenant on Civil and Political Rights, 1976. 176
Sec. 41D, Code of Criminal Procedure, 1973 inserted by Amendment Act. 5 of 2009 177
Frequency table no. 7 178
Frequency table no. 6
77
accurate, visible and clear identification marks on their uniforms. On the other hand,
10.5% of the total respondent interviewed revealed that the arresting officers were
wearing uniforms but they did not bear clearly visible identity plates. 179
So, we can
enumerate that the maximum number of the respondent revealed that the arresting
officers did not bear an accurate, visible and clear identification marks on their
uniforms which was an important part of the directions given in D.K. Basu case.
While, it is also evident that 42.1% of the respondents were told the grounds of their
arrest, while, 26.3% of the respondents were not even told the grounds of their arrest
by the arresting officers. On the other hand, 31.6% of the respondents revealed that
they were not told about the ground of their arrest in spite of their asking. We can
enumerate that 57.9% of the respondents were not told about the grounds of their
arrest.180
We can say maximum number of respondents were not told about the
grounds of their arrest which was an important part of the D.K. Basu guidelines.
It is clearly evident from the empirical study that 42.1% of the respondent revealed
that arresting officers did prepared an arrest memorandum in the presence of a
witness, while, 36.8% of the respondent revealed that the arresting officer did not
prepared any arrest memorandum while making their arrest. While, 21.4% of the
respondents revealed that arresting officer did prepared an arrest memorandum but
any witness was not there.181
So, we can enumerate that in 57.9% of cases either
arrest memorandum was not prepared or an illegal arrest memorandum was prepared
by the arresting officers which is a clear violation of the D.K. Basu guidelines.
It is also evident from the study that 57.9% of the respondents revealed that the police
did informed their relative/friend regarding their arrest, while, 15.8% of the
respondent revealed that police did not informed their relative/friend regarding their
arrest. Moreover, 26.3% of the respondents revealed that neither the police informed
their relatives/friend not did the respondent was allowed to do so. We can enumerate
that in 42.1% of the cases police did not informed the relative/friend of the informant
regarding his arrest.182
However, in maximum number of cases police did informed
the relative/friend but in considerable number of cases police failed to do so which is
a violation of the guidelines provided in D.K. Basu case.
179
Frequency table no. 3 180
Frequency table no. 4 181
Frequency table no.5 182
Frequency table no. 6
78
Hence from the above data and arguments we can conclude that in most of the cases
police failed to comply the guidelines provided in D.K. Basu case. So, we can say
that most of the police officers are unaware of the D.K. Basu guidelines. Thus, it can
be concluded that the above hypothesis is accepted.
The reason behind the problem is lack of knowledge and insufficient amount of legal
training to the police officers, as it is visible in the collected data that 51.7% of the
police officers interviewed were taught the procedure regarding arrest and
interrogation only during their initial training days after recruitment, while, 35.5% of
the officers said that they are been taught the procedure of arrest and interrogation
after every 1 year, while 10.3% of the total officers said that they are been taught the
procedure of arrest and interrogation in every 6 months. Only 3.4% of the police
officers from the total sample interviewed said that they have never been taught the
procedure of arrest and interrogation. From the above statistical data we can assert
that the majority of the sample interviewed was taught the procedure of arrest and
interrogation only during their initial period of the training soon after their
recruitment and they do not have latest updates of the legal guidelines.
79
CHAPTER 6
CONCLUSION AND RECOMMENDATIONS
The objectives of the study was to outline the law and policy frame work governing
custodial interrogation in India, to test the grounds of existing police practices in
Delhi in custodial interrogation and to analyse the effectiveness of the guidelines
provided in D.K. Basu case.
The empirical study proves the hypothesis that there is a considerable failure on the
part of the police in performance of its duties and responsibilities in accordance to the
guidelines provided in the D.K. Basu case. In addition to this failure there is an active
violation too, in maximum number of cases within the collected data it is visible that
police subject the suspect to force and torture in order to get self incriminatory
statements. There could be a number of reasons for that, the nature of the job of the
police is such that it requires to deal with the criminal group of the society. The day
to day working of the police involves a high level of the risk of own life as well as an
improper working condition.
A police officer has to respond to his services to the state, immediately as his duty
calls. On the other hand, the working conditions of a police officer are very rough and
harsh. The uncertain job routine and the harsh working conditions socialise his
personality in a negative way, which is also a requirement of his job.
Such a harsh nature of job has gradually developed into a harsh occupational culture
and so is reflected in his attitude towards citizens. The legal framework which are
embedded in the nature of the job of police are also the important reason for his harsh
attitude.
The ethical code of different criminal process functionary may vary in accordance to
the role they play in the criminal justice system.183
A good law is ethically and
morally correct too. In order to legislate a socially „correct‟ law the principles of
ethics shall be considered. So it is considered that the ethical principles apply on the
law makers as well as to those who are subjected to them i.e. the ones who are
supposed to abide by it (lower rank functionaries).
183
W.H. Simon, The Ethics Of The Criminal Defence, Mich LR 1703,(1993).
80
The various functional groups in a criminal justice process have different occupational
cultures, an ethical code may help to define their occupational culture and help them to
use their discretion accordingly.
Ethics are those guiding principles to the lawmakers that help them to make rules for
the particular group of criminal process functionaries, such rules, which are suitable to
their occupational culture.
The ethical code of a particular occupational culture of a particular functional group
(police, lawyer, prosecutor etc) not only helps to develop their professional skills but
also helps the new recruits to develop an attitude in accordance to the demand of their
profession.
The law enforcement agencies play a primary role in order to start a fair criminal
process. The laws laid by the legislature and the directions given by the judicial
pronouncements guide the conduct of the police officer, but the nature of the police
profession is such, which includes fine technicalities which demand a practical
implementation of skills.
By training the police officers in such a way that they could use their discretion
appropriately when there is an absence of any explicit law to guide their actions. This
way the new recruits could be gradually adopt the professional ethics through an
training mode. Another way through which a police officer can adopt the ethics of his
profession is- when he accepts the occupational culture of his professional group by
practically working in the group. It is an automatic and gradual process through which
the new recruits joins the force and adopts the occupational ethics through a span of
time.184
It is the duty of the police officer to give a humane treatment to the suspect during
interrogation. It is evident from the empirical data that some kind of force was used
against 73.7% of the respondents during the process of interrogation.185
Which shows a
clear violation of the guidelines provided in the D.K. Basu case.
There are a number of reasons behind such violation. One of them is a high level of
stress in the job of the police officers there are no fixed working hours for a police
officer and so he faces a high level of stress.
184
M. Maguire and C. Norris, The Conduct And Supervision Of Criminal Investigations (1992) 185
Frequency table no. 11
81
I will recommend that the job routine of the thana police shall be proper and their
working hours shall be specified. This will not only reduce the stress level in their job
but also change their aggressive attitude towards the suspect during the interrogation
process. Another important right available to the suspect is „right against self-
incrimination‟.
From the collected data for the study, it is visible that all the respondents were made
to give self- incriminatory statements, while most of them were forced to do so.186
It
is the clear violation of the fundamental right provided to the suspect by the
constitution of India.
The reason for such a violation is a lack of awareness of the legal statutes among the
police officers, as it is evident in the study that the maximum number of the police
officers had legal training during the initial phase of their training periods, after that
they were not taught about the law and they were not given the latest legal updates. I
will recommend that the ministry of the home affair shall devise a curriculum for
their annual refresher courses. So that they could be well updated with the latest legal
advancements.
Another important legal right available to the suspect is „right to remain silent‟, but
this right is not available in the form of the statute in India. I will recommend that
„right to remain silent‟ shall be inserted by the medium of amendment in the Code of
Criminal Procedure, 1973. It shall be explicitly mentioned that, if the suspect chose to
remain silent then his silence shall not be taken as the assertive answer to the question
of the interrogation officer.
Another important recommendation i will like to make, that, as there are no specific
guidelines regarding the procedure to be followed during the police interrogation
process by the police authorities. So, a specific questioning and interviewing criteria
shall be set by the legislature which shall be followed by all the interrogation
authorities. This will not only provide a proper guideline to the police authority but it
will also save the suspects from the cruel and inhumane treatment due to the use of
uncertain interrogation techniques by the police.
186
Frequency table no.14
82
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on 17th
may 2014 at 15:30
Fifth Amendment, THE CONSTITUTION OF UNITED STATES 1791, retrived at
http://legal-dictionary.thefreedictionary.com/fifth+amendment on 20th
of April 2014
at 11:28AM
Body of Principles for the Protection of All Persons under Any Form of Detention or
Imprisonment General, Assembly Resolution 43/173, Principle 21 para 1 from
<http://www.unhchr.ch/html/menu3/b/h_comp36.htm> retrieved on 18th
may 14:12
ANNEXURE 1
Sno: name of the police thana/ paper no.
NATIONAL LAW UNIVERSITY, DELHI
(Questionnaire for Police officers in Delhi)
Note:
- Please mark the correct choice.
- Do not write your name or any other identity mark on the questionnaire
Q1) Since how many years are you serving in police force?
A) Less than 5 yrs
B) 5 yrs to 15 yrs
C) 15 yrs to 25 yrs
D) More than 25 yrs
Q2) How much time do you spend at police station?
A) Less than 5 hours
B) 5 hours to 10 hours
C) 10 hours to 25 hours
D) More than 15 hours
Q3) What is your current educational qualification?
A) 12th
B) Graduation
C) Post- graduation
D) Doctorate
Q4) Do you know all the guidelines of D.K Basu case?
A) Yes, all of them
B) No, none of them
C) Some of them
D) I was not taught any provision of CrPc in training
Q5) Rate how stressful your job is on the scale of 1 to 10, where 1 being not stressful
at all and 10 being the most stressful.
A) 1 to 3
B) 3 to 6
C) 6 to 9
D) Above 9
Q6) Are you often taught about the procedure which is to be followed while making
arrest and interrogation?
A) Yes, in every 6 months
B) Yes, in every 1 year
C) Yes, only during initial training period after recruitment
D) I have never been taught
Q7) For making an arrest, on an average, how many police officers are required?
A) 1-
B) 2-3
C) 3-4
D) More than 4
Q8) In how many cases, on an average, do you face a huddle or counter force on the
part of the arrestee or his relatives/friends?
A) In less than 3 out of every 10 cases
B) In 5 out of every 10 cases
C) In 9 out of every 10 cases
D) In all the cases
Q9) On an average, how many hours do you need to continuously interrogate a
suspect in a heinous crime?
A) Less than 4 hours
B) 4 hours to 6 hours
C) 6 hours to 8 hours
D) More than 8 hours
Q10) while interrogating a suspect in a heinous crime like rape, do you provide him
with following facilities:
A) Air conditioner room
B) Quick legal help, even before taking him to the court
C) Permission to meet his acquaintances for moral support, within 24 hours of
arrest
D) All of these
E) Only 2 and 3
F) Only 2
G) None of these
Q11) In your opinion what shall be an ideal punishment for an offender of rape?
A) Hang till death
B) Mutilating
C) Rehabilitation
D) Beaten by public till he dies
ANNEXURE 2
Sno: name of the police thana/ paper no.
NATIONAL LAW UNIVERSITY, DELHI
(Questionnaire for Police Arrestee in Delhi)
Note:
- Please mark tick on the correct choice.
- Do not write your name or any other identity mark on the questionnaire
Q1) What was your age at the time of your Arrest?
A) 12yrs to 18yrs
B) 18yrs to 30yrs
C) 30yrs to 50yrs
D) Above 50 yrs
Q2) What was the approximate number of police officers present at the time of your
arrest?
A) 1 to 2
B) 2 to 3
C) 3 to 4
D) More than 4
Q3) Did the arresting officer bearing accurate, visible and clear identification marks
on their uniforms?
A) Yes
B) No
C) Yes, they were in uniforms but did not bear any identity plates.
Q4) Were you informed about the grounds of your arrest, before you were arrest?
A) Yes
B) No
C) No, they did not tell in spite of asking.
Q5) Did the police officers prepared a memorandum while making your arrest in the
presence of a witness?
A) Yes, they did.
B) No, they did not.
C) Yes, memorandum was prepared but there was no witness.
Q6) Did they inform any of your friend or relative regarding your arrest?
A) Yes, they did.
B) No, they did not.
C) No, they did not and neither allowed me to do so.
Q7) Soon before the interrogation process, were you informed about your right to
have a legal advisor?
A) Yes, they did inform me.
B) No, they did not inform me.
C) No, neither they inform me and nor did they allowed to call my legal advisor.
Q8) Were you informed about your „right to remain silent‟?
A) Yes, they did.
B) No, they did not.
Q9) For how many hours were you kept in the police custody after your arrest?
A) Less than 5 hours
B) 5 hours to 15 hours
C) 15 hours to 24 hours
D) More than 24 hours
Q10) For how many hours you were interrogated continuously?
A) Less than 5 hours
B) 5 hours to 15 hours
C) 15 hours to 24 hours
Q11) Was any kind of physical force used against you during interrogation?
A) Yes
B) No
Q12) Was the „interrogation room‟ properly ventilated and clean?
A) Yes.
B) No
Q13) Rate how stressful the process of interrogation was on the scale of 1 to 10,
where 1 being not stressful at all and 10 being the most stressful.
A) 1 to 3
B) 3 to 6
C) 6 to 9
D) Above 9
Q14) During the questioning were you forced to give „self-incriminatory‟ statements
or „fake confession‟?
A) Yes
B) No
C) Yes, but force was not used.
Q15) When were you produced before the court?
A) Within 12 hours of arrest
B) Within 12 to 24 hours of arrest
C) Within 24 hours to 48 hours of arrest
D) After 48 hours of arrest
Q16) Are you aware of the rights of an arrestee?
A) Yes
B) No
