Custodial violence a concern for civilized society: Allahabad High Court denies bail to ex-policeman accused of custodial death

The Allahabad High Court has rejected the bail plea of a former police constable accused in a custodial death case (Sher Ali v. State of UP).

While rejecting the plea, single judge Justice Samit Gopal also expressed his concern and anguish at custodial violence stating that it is a blot on civilised society.

"Custodial violence, custodial torture and custodial deaths have always been a concern for civilized society. Times and again the judicial verdicts of the Apex Court and other Courts have shown their concern and anguish in such matters," the Court said.

The Court said that police force is a disciplined force enshrined with the pious duty of maintaining law and order and the accused's release may have an adverse effect on the trial.

In the present case, the Court said that there was nothing on record to show that the death of the person in custody was a natural death.

The Court was hearing a case of custodial violence which took place in 1997 in which the applicant, Sher Ali was one of the accused.

On March 2, 1997 one Om Prakash Gupta was allegedly arrested and taken into custody where he died allegedly after assault by the police personnel.

The police in order to conceal the same, conspired with the doctors of District Hospital, Shahdol and tabled the admission of Prakash in the hospital one hour prior to his death to show that the death had occurred in the hospital though Prakash had died at Police Station itself.

The son of the deceased sent a representation to the Senior Superintendent of Police by registered post but no action was taken.

Later, a First Information Report (FIR) was registered on the basis of the complaint by the son for offences under Section 304 (culpable homicide not amounting to murder), 506 (criminal intimidation) and 364 (kidnapping in order to murder) of Indian Penal Code.

The counsel for applicant submitted that he has been falsely implicated in the case and the death of Om Prakash was natural and even the doctors after the postmortem could not give any definite opinion about the cause of death.

Further it was submitted that FIR was based on totally false and frivolous allegations and there was no corroboration of the version of the prosecution that the deceased died a custodial death.

On the other hand, the Additional Government Advocate (AGA) opposed the bail and submitted that beating of the deceased in police custody was evident from the fact that he had received two contusions on his body and the site of the injuries are fleshy part of the body which could have happened only on assault.

After examining the record and submissions, the Court said that it was a case of custodial violence and death was not natural.

"The deceased as per the postmortem report has received injuries on his body which are suggestive of assault on him by hard and blunt object. There is no finding in the postmortem examination report which would be suggestive of any heart problem or cardiac arrest/heart attack. There is nothing to show that the death was natural," the Court said.

It, therefore, said that bail cannot be given at this stage and referred to the fact that Supreme Court had on September 23, 2020, directed the trial court to proceed with the trial on a day-to-day basis and make an endeavour to conclude it within a period of one year.

The Court also adverted to the observations by the Supreme Court on custodial violence in the landmark case of DK Basu Vs. State of West Bengal.

"Custodial death is perhaps one of the worst crimes in a civilised society governed by the rule of law. The rights inherent in Articles 21 and 22(1) of the Constitution require to be jealously and scrupulously protected. We cannot wish away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall within the inhibition of Article 21 of the Constitution, whether it occurs during investigation, interrogation or otherwise," the Court quoted from DK Basu.

The bail plea of Sher Ali was, therefore, rejected.

[Read order]