Police not immune from prosecution for custodial torture — SC

This ruling was given by the bench which dismissed an appeal filed by two Kerala policemen against their prosecution on the ground that the complaint against them was filed nine months after the alleged incident took place inside the Perambra police station in Kozhikode.

“If a police officer inflicts torture on a prisoner inside the lock up and he knows that the right of the prisoner to move within the time prescribed for such acts would stand permanently debarred after the expiry of six months, he might inflict such sorts of physical harm to the prisoner as to disable him from moving out for the next six months so that the offending policeman would stand permanently immune from prosecution proceedings in respect of the offence committed by him,” Justice Thomas said for the bench.

He said that if an interpretation was given to Section 64(3) of the Kerala Police Act so as to grant immunity to policemen from prosecution after lapse of six months, “it may give rise to calamitous consequences”.

On December 23, 1994 a middle-aged shop keeper P. Alikutty was called to the Perambra police station and made to wait till the arrival of sub-inspector P.P. Unnikrishnan, who came only in the next morning till which time he was not allowed to go home. He was kept in custody till December 27 on the suspicion of stealing articles from a nearby shop. During his custody period of over 24 hours, he was beaten up by the policemen and was released with the threat that if he divulged the incident to anyone, he would be trapped in a false case.

Alikutty filed a complaint against the two policemen on September 1, 1995 before the Perambra judicial magistrate, who took cognisance of it and rejected the erring officers’ plea that they could not be prosecuted as the offence was time-barred. Their appeal was dismissed by the High Court.

The Supreme Court said that the bar provided in the Kerala Police Act as well as under Section 197 of Criminal Procedure Code was for preventing public servants from being subjected to frivolous prosecution for discharging their duty.

“The commission of an offence, while acting or purporting to act in the discharge of his official duty is of a wider radius when compared with an offence on account of an act done in pursuance of any duty or authority,” it said.

Justice Thomas further said: “If a police officer dealing with law and order duty uses force against unruly persons, either in his own defence or in defence of others and exceeds such right, it may amount to an offence. But such offence may fall within the amplitude of Section 197 of the code as well as Section 64(3) of the Kerala Police Act,” he said.

However, “if a police officer assaults a prisoner inside a lock up, he cannot claim such act to be connected with the discharge of his authority or exercise of his duty unless he establishes that he did such acts in his defence or in defence of others or any property”, Justice Thomas added.

Similarly, if a police officer wrongfully confined a person in a lock up beyond a period of 24 hours without the sanction of a magistrate or an order of a court, it would be an offence for which he could not claim any protection in the normal course, nor could he claim that such an act was done in exercise of his official duty, the bench said.

“A policeman keeping a person in the lock up for more than 24 hours without authority is not merely abusing his duty but his act would be quite outside the contours of his duty or authority,” Justice Thomas said.