“Under Section 114B of the Indian Evidence Act, the court may presume, based on evidence and testimony presented, that the death of a detainee was due to the negligence or actions of the police officer on duty,” Royston Tan told FMT.
“So, the police officer accused of murder has to prove his or her innocence.”
Section 114B was an amendment to the Indian Evidence Act 1872 introduced in 2016. In order to be believed innocent under the Act, the police officer must provide clear explanations supported by evidence.
Tan’s comments come following an incident on April 13, where a 45-year-old male detainee died on the way to the hospital after he was “seen to be having seizures” by personnel on duty.
The case was the 16th custodial death this year.
Additionally, he suggested the establishment of an independent body to investigate custodial deaths.
“We should adopt an approach like in England, where they have a coroner department to manage matters related to death investigations.
“The jurisdiction of the coroner includes the investigation of deaths of an unusual nature and which (also) give rise to doubt,” he said.
Authorities ignore Section 28 of CPC
Lawyer Rafique Rashid Ali said the alarming rate of custodial deaths indicated a general failure by the authorities to adhere to Section 28 of the Criminal Procedure Code (CPC).
Section 28 of the CPC states that a police officer shall, as soon as may be, allow an arrested person to communicate with a relative (or friend) to inform of their whereabouts or to communicate (and consult) with a legal practitioner of their choice, should the arrested person wish to do so.
“This is especially an issue when family members try to reach out to those in custody. They don’t seem to be getting the proper and correct information; the police are not forthcoming,” he said.
Rafique said adherence to Section 28 would increase the timeliness of assistance being provided to an arrested person.
“Once family members or legal counsel learn of a person’s arrest, immediate action can be taken to seek out where the individual is being held and ascertain their condition,” he said.