Custodial torture not part of police duty; lack of State sanction can't shield errant cops: Kerala High Court

The Kerala High Court recently held that lack of government sanction cannot be ground to let off police officers for custodial torture of accused [Sudha v. State of Kerala & Ors.].

Police cannot be allowed to get away with custodial torture merely for want of government sanction to prosecute such guilty police personnel, the Court underscored.

As per Section 197 of the Code of Criminal Procedure, prior government sanction is necessary to prosecute police officers for actions committed in the discharge of their official duty or purporting to be in discharge of their official duty.

Justice Kauser Edappagath categorically stated that the provision cannot be used as a shield to enable custodial torture of persons arrested by police since torture can never be said to be part of the official duties of the police.

"The act of custodial torture inflicted by a police officer without justification on an arrestee cannot be shielded under the protective mantle of Section 197 of CrPC. It can never be said that a police officer acts or purports to act in discharge of his official duty when he inflicts custodial torture on an arrestee," the Court's judgment stated.

Justice Edappagath also urged courts to take stern measures against such police excess. Failing to do so would shake the foundation of the justice delivery system as a whole.

"The courts must not lose sight of the fact that custodial torture is perhaps one of the worst kinds of crime in a civilised society, governed by the rule of law and poses a serious threat to an orderly civilised society. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnish the image of any civilised nation and encourage the men in ‘Khaki’ to consider themselves to be above the law and sometimes even to become law unto themselves. Unless stern measures are taken to check the malady, the foundations of the criminal justice delivery system would be shaken. The courts must, therefore, deal with such cases in a realistic manner and with the sensitivity which they deserve; otherwise, the common man may lose faith in the judiciary itself," the judgment stated.

The Court made these observations while dealing with a revision petition moved by a woman named Sudha who used to be employed as a housemaid. She was accused by her employers of stealing gold sovereigns and dragged to the police station.

Police officers beat her and tortured her for over three hours until finally her employers informed them that they had found the gold in the house itself. Sudha was allowed to leave the police station but only after she and her family were threatened by the cops and warned against revealing the incident to anyone.

But Sudha filed a private complaint before a Magistrate Court which found that there was sufficient cause to proceed against the employers and the police officers under various provisions of the Indian Penal Code (IPC). Charges were also brought under the provisions of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act as Sudha belonged to a scheduled caste while the accused belonged to upper caste.

But a sessions court, where the case was transferred for trial, decided to discharge all the accused. The employers were discharged as the court found there was no prima facie material to establish the charges against them. The police officers were discharged as the court noted that there was no prior sanction to proceed against them.

Sudha subsequently moved the High Court with this revision petition challenging the decision of the sessions court.

The High Court noted from the medical records that Sudha had severe injuries on her body after she left the police station. The actions of the police officers could never be justified as being part of official duties, the Court said.

"There may be circumstances which may justify the use of force by the police while discharging their official duty. But that is not the case here. The custodial assault as alleged by the petitioner in detail in her complaint and sworn statement, can never be justified under the shelter of performance of official duty," the judgment stated.

Therefore, it set aside the session court order to the extent that it discharged the police officers and directed it to frame charges and proceed with trial against the police officers.

Sudha was represented by advocates V Sajith Kumar, Josie Mathew, Neena J Kalyan and Ammu M.

The police officers were represented by advocate AS Shammy Raj.

Senior Public Prosecutor EC Bineesh appeared for the State.

[Read Judgment]