Section 176 (1A) was inserted in the statute in 2005, mandating an enquiry by judicial magistrate or metropolitan magistrate in cases of death, rapes and disappearances in custody; such enquiries were done by executive magistrates before 2005. (Representative Image)(Representative photo)
Section 176 (1A) was inserted in the statute in 2005, mandating an enquiry by judicial magistrate or metropolitan magistrate in cases of death, rapes and disappearances in custody; such enquiries were done by executive magistrates before 2005. (Representative Image)(Representative photo)

Probe all custodial deaths, rules NHRC

The revised NHRC order says probe will be held in all cases of custodial deaths by a judicial or metropolitan magistrate.
By Neeraj Chauhan
PUBLISHED ON JAN 14, 2021 01:22 AM IST

Ten years after it wrongly interpreted section 176 (1A) of Code of Criminal Procedure (CrPC), the National Human Rights Commission (NHRC) has revoked a 2010 order which limited the scope of enquiry into custodial deaths to only those cases where there was reasonable suspicion of foul play or well-founded allegations of an offence.

The human rights body issued a revised order in September 2020 that was not made public. The order, seen by HT, stated that the enquiry in all cases of custodial deaths, including natural deaths or deaths due to any illness, shall be conducted by a judicial magistrate or metropolitan magistrate.

Section 176 (1A) was inserted in the statute in 2005, mandating an enquiry by judicial magistrate or metropolitan magistrate in cases of death, rapes and disappearances in custody; such enquiries were done by executive magistrates before 2005.

However, a full bench of NHRC, on April 5, 2010, misinterpreted the law and issued an order saying that “when there is no suspicion or foul play or where there is no evidence or allegation of an offence, an enquiry by a judicial magistrate is not mandatory”.

As a result, state police forces have been registering most custodial deaths incidents as natural deaths or suicides, according to experts. For example, according to the National Crime Records Bureau (NCRB) , out of 85 total cases of custodial deaths in 2019, 33 were recorded as suicides and 36 as being caused by illnesses. Only two deaths were recorded due to physical assault in police custody. Similarly, almost 70% of deaths in police custody in the past decade (out of a total 1,004) have been attributed to illness, suicide or death from natural causes.

NHRC’s full commission, led by its former Chairperson H L Dattu, observed the anomaly in the 2010 order and decided to withdraw it.

In its recently revised order, reviewed by HT, and circulated to all states and Centre, NHRC has said – “…in three circumstances viz. death, disappearance or rape alleged to have been committed on any woman within the police or judicial custody, there must be an inquiry to be conducted by the Judicial Magistrate or Metropolitan Magistrate, in whose jurisdiction, the incident has taken place.”

The provision, it said, cannot be diluted by qualifying that such an inquiry will be conducted only in suspicious circumstances.

Dattu, who completed his five-year tenure as NHRC Chairperson last month, said: “I felt it required some sort of tinkering to bring it to proper perspective as there was something missing in the judgement (referring to the NHRC 2010 order). We noticed that several complaints were coming to the NHRC regarding natural death or suicide cases not being inquired by judicial or metropolitan magistrates. This required correction”.

Meenakshi Ganguly, South Asia Director at Human Rights Watch (HRW) said “In most of the cases, to cover-up the store of abuse, the deaths are recorded as natural death or due to illness. It’s important that there is course correction.”

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