What is the process that is supposed to be followed when a person, who has been arrested, alleges physical assault and torture by the police?
On Wednesday, 24 February. the Punjab & Haryana High Court had to adjourn the suo motu case it has registered regarding the arrest of activist Nodeep Kaur, because the Haryana Police had failed to provide a medical report on her condition to the court.
In addition to arguments that she has been illegally detained by the Haryana Police in connection with three cases arising out of her agitations for workers’ rights in Kundli, Kaur’s lawyers have consistently claimed that she was severely beaten by the police and even faced sexual assault at the police station she was taken to, after her arrest on 12 January.
The Haryana Police deny the allegations of assault and claimed that Kaur had been accompanied by women police officers throughout and taken to the Civil Hospital in Sonipat within hours of her arrest for a mandatory medical examination, and that during a special examination for sexual assault, she had not made any such claims on the day.
In submissions to the high court, Kaur has contested this and argued that she was taken to the police station in the absence of any woman police official, and was “beaten black and blue by the police officials.”
Kaur is not the only one to make a claim of assault by the police in connection with this case.
Another activist from Mazdoor Adhikar Sangathan, Shiv Kumar, was also arrested by the Haryana Police on 12 January in connection with the same cases. His father has also filed a petition in the Punjab & Haryana High Court alleging that the 24-year-old was beaten up in police custody.
The high court ordered a medical examination of the accused at the Government Medical College and Hospital in Chandigarh on 20 February. Kumar’s case was also to be taken up on 24 February, but will now be heard with Kaur’s on the 26th.
In Kaur’s case, the high court has not yet ordered a separate medical examination, as the chief judicial magistrate had already reportedly ordered a medical examination for her on 18 January – this is the report which the Haryana Police failed to provide to the court on 24 February.
But what is the process that is supposed to be followed in a case like this? Who is supposed to ensure that a medical examination of this sort is conducted? Where is the examination to be conducted? And would the findings of the medical examination be sufficient in themselves to ensure bail for the arrested person?
Right of an Arrested Person to Request Medical Examination
Under Section 54 of the Code of Criminal Procedure (CrPC), a person who has been arrested can request a medical examination at any time during the period of his detention in custody, which he claims will:
- Prove he never committed an offence; or
- Establish that someone else committed an offence against him.
The second point is the key one here, as this allows the arrested person to ask for a medical examination to prove that the police assaulted or tortured them.
The Haryana Police claim that Nodeep Kaur never made the allegations of physical and sexual assault to the magistrate before whom she was produced after her arrest on 12 January.
Arrested persons are often not given any proper opportunity to communicate with the magistrate during these proceedings, or may not have a lawyer of their choice present with them to fight for their rights, so any such claim by the police in any case does need to be taken with a pinch of salt.
However, even assuming it to be true, Kaur had every right to make the claim subsequently as well, given the clear wording of Section 54 which says the request can be made when the person is produced before a magistrate “or at any time during the period of his detention in custody”.
There is thus no time bar or limitation on when the arrested person can request such a medical examination.
Any such request has to be forwarded to a magistrate with appropriate jurisdiction, who “shall... direct the examination of the body of such person by a registered medical practitioner”.
The magistrate can only deny the request if they consider it is being made “for the purpose of vexation or delay or for defeating the ends of justice.”
Who Can Order a Medical Examination on Claims of Police Torture?
As can be seen from the plain wording of Section 54 of the CrPC, a magistrate from the lower courts can order the medical examination in all cases where the arrested person requests it, even if they are alleging assault or torture by the police.
Indeed, in Nodeep Kaur’s case, the judicial magistrate first class in Sonipat had passed such an order based on her claims.
Unfortunately, in many cases, it takes the intervention of the high courts or even the Supreme Court to order that such a medical examination is conducted.
Chhattisgarh tribal rights activist Soni Sori, for instance, had to go all the way up to the Supreme Court to get an order for an independent medical examination after she had complained of torture in police custody.
The police there also denied her claims of assault and torture, and claimed she had hurt herself in a fall while bathing.
In 2011, however, the apex court noted that the injuries sustained by her “do not prima facie appear to be as simple as has been made out by Chhattisgarh Police.”
The court ordered an independent medical examination of Sori in Kolkata. According to news reports, the Kolkata medical college where she was examined found stones were inserted in her vagina and rectum, which was communicated to the Supreme Court on 25 November 2011.
The key point is that there is actually no need for the higher judiciary to get involved in claims like this as the magistrate, the very first rung of the criminal justice system, has the power to do so, and is required to do so unless they believe the accused is up to some mischief.
Given the widespread nature of custodial violence in India, however, a magistrate would need to have good reasons to disagree with a request for a medical examination.
By the time the matter reaches the high courts or the Supreme Court, the arrested person can buttress their request with requests for constitutional writs alleging violation of Article 21, and in such cases, it is difficult to see how a request for a medical examination can then be denied.
There are no set rules on where the medical examination will take place. However, the courts will normally look to get the examination done by a reputed medical institution which they are confident will not be influenced by the police. This could be within the same state but different city (like in Shiv Kumar’s case) or in a different state entirely (like Sori’s case) or even in the same city, depending on the circumstances.
What Happens Next?
Unfortunately, even if the medical examination ordered by the court does back up the arrested person’s claims of assault and torture by the police, this does not necessarily guarantee effective action against the police.
India is one of only five countries which have not ratified the 1987 UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. Nor do we have any specific provisions in the Indian Penal Code on torture/assault by police officers.
If a medical report comes back showing an arrested person has actually been assaulted or tortured by the police, the magistrate who ordered the medical exam is supposed to file a criminal case against those responsible under appropriate provisions.
Even though there may not be any police-specific IPC provisions, offences of hurt, grievous hurt, sexual assault or rape could be invoked as applicable. In cases of rape by a police officer, this is considered an aggravated offence under Section 376(2) of the IPC.
Given the mechanical way in which much of the judiciary functions, the arrested person is likely to have to file a complaint with the magistrate or other court asking for the case to be initiated.
For any such complaint to be fairly investigated, the investigation into the complaint would likely need to be investigated by an outside agency or police force. In the horrific Thoothukudi custodial deaths case, where shopkeepers Jayaraj and Bennix were tortured and beaten by local police, the CBI was asked to investigate the case, filing a charge sheet.
Again, however, there are no hard and fast rules on this, demonstrating a need for urgent reform of the law on point.
Does the Person Get Bail if the Exam Finds Injuries?
While one might assume that a finding of police torture or assault would automatically translate into bail for an arrested person. However, under the law, this is not the case.
“These two things are totally independent under the law. Even if it is found that the police beat up a person in custody, this would not in itself be grounds to grant them bail,” senior advocate Satish Tamta explained to The Quint.
In the absence of any provision in the CrPC or a torture law or guideline from the Supreme Court, the courts will conduct a regular assessment of whether or not to grant bail to an arrested person – potential assault or torture in police custody wouldn’t necessarily affect that.
Take Soni Sori’s case for example, where despite the findings of the examination in Kolkata, she was not granted bail till two years later by the apex court in 2013. The alleged custodial torture was noted by the judges in their order, but was not itself a ground for her release.
As a result, even if the medical examination of Nodeep Kaur or Shiv Kumar reveals that they were beaten and assaulted by the Haryana Police, this would not automatically lead to their release.
The court will have to do the regular bail assessment here, of seeing if there is a prima facie case and then if the accused is likely to repeat the offence, abscond or tamper with evidence and witnesses if released.
The allegations of torture, while intuitively relevant even to this, may not necessarily help as the court could find that there are other reasons to deny them bail, and could pass orders for their protection in judicial custody.
Under the Evidence Act, however, any confessions/admissions wrung out of them as a result of this torture, would be found to be inadmissible.