Lack Of State Sanction Cannot Be Ground To Let Off Police Officers For Custodial Torture Of Accused: Kerala HC

It is in the fitness of things that while catching the bull by the horns, the Kerala High Court at Ernakulam in a most learned, laudable, landmark, logical and latest judgment titled Sudha vs State of Kerala & Ors in Crl.Rev.Pet No. 1130 of 2017 (Against The Common Order Dated 25.01.2017 In Criminal M.P. NOS.627/2015, 1851/2016 And 1757/2015 In SC No.1181 Of 2009 Of District Court & Sessions Court, Thiruvananthapuram Arising Out Of CP No.35 Of 2009 Of Judicial Magistrate Of First Class - II, Thiruvananthapuram) and cited in Neutral Citation No.: 2025:KER:42756 that was pronounced as recently as on June 16, 2025 has minced absolutely just no words to hold in no uncertain terms most unequivocally that lack of government sanction cannot be ground to let off police officers for custodial torture of accused. Going by the law, we need to note that 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. It is in this context that the Single Judge Bench of Kerala High Court comprising of Hon’ble Dr Justice Kauser Edappagath made it plainly clear 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.

By the way, we  need to note here that this was held so while dealing with a revision petition that had been 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. It must be disclosed here that 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.    

It is high time now and penal laws must be definitely amended by which custodial torture accompanied with injuries should be mandatorily punishable with minimum 10 years punishment and so also where custodial torture occurs with grievous injuries should be punishable with life term and custodial death should be punishable with mandatory death or at least mandatory life term which most unfortunately and most astoundingly we don’t get to see even in the revised penal laws! There has to be absolute complete zero tolerance for police excesses so that the men in uniform dare not ever consider themselves as being above law of the land which we don’t see in last  nearly 80 years of independence! If police refuses to lodge FIR which we see every now and then, the guilty police officials in such cases must be sent to jail for at least an year! It merits just no reiteration that such basic steps needs to be urgently taken to usher in more discipline and more accountability in the police force!  Of course, it definitely brooks  no more delay any longer now!

Before stating anything else, it must be stated that the Bench itself encapsulates in para 21 what constitutes the cornerstone of this notable judgment postulating precisely that, “The courts must not lose sight of the fact that custodial torture is perhaps one of the worst kinds of crime in a civilized society, governed by the rule of law and poses a serious threat to an orderly civilized society. Police excesses and the maltreatment of detainees/undertrial prisoners or suspects tarnish the image of any civilized 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 [Shyamsunder Trivedi (supra)].”

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Dr Justice Kauser Edappagath of Kerala High Court sets the ball in motion by first and foremost putting forth in para 1 precisely that, “The petitioner is the complainant/victim in S. C. No.1181/2009 on the files of the Sessions Court, Thiruvananthapuram (for short, the trial court). The respondents Nos.2 to 9 are the accused therein. The offences alleged against them are under Sections 166, 211, 220, 323, 324, 330, 331, 341, 342, 348 and 354 read with Section 34 of the Indian Penal Code and Section 3(1)(ix)(x) and (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short, the SC/ST (PoA) Act).”

As we see, the Bench then discloses in para 2 that, “The case arose from a private complaint filed by the petitioner before the Judicial First-Class Magistrate - II, Thiruvananthapuram, as CMP No.675/2007 against the respondent Nos.2 to 9 herein and one Mr. Rajeev. The accused Nos.1 and 2 in the complaint are husband and wife. Accused Nos.3 and 4 are their daughter and son-in-law, respectively, and the accused No.5 is their close companion. Accused No.6 was the Sub Inspector and accused Nos.7 to 9 were the Women Police Constables at Fort Police Station, Thiruvananthapuram.”

To put things in perspective, the Bench envisages in para 3 while elaborating on the facts of the case stating that, “The allegations in the complaint, in brief, are as follows: The complainant belongs to the Hindu Thandan community, whereas the accused belongs to the forward communities. The complainant was a housemaid in the residence of accused Nos.1 to 4. While so, on 20.07.2006, when she went there to attend the job, she was told by accused Nos.1 to 4 that about nine sovereigns of gold were missing from their house. She was questioned by them with the suspicion that she had stolen the items. At that time, her marriage was fixed. She was threatened, stating that she should give back the gold items. Though she asserted her innocence, without heeding the same, she was abused, questioned and humiliated by calling her caste name. She was also intimidated that if the place of concealment of the stolen items was not disclosed, she would be handed over to the police. Even after attending to all the work of the day, she was not given food or water and was confined in the house without being permitted to go back home. Then a false complaint was given to the police, following which the accused Nos.7, 8 and 9, the women police constables of Fort Police Station, Thiruvananthapuram, reached the house and started interrogating her. She reiterated her innocence, but they insisted that she should confess the guilt. Later, by 4 o’clock, she was taken to the Fort Police Station, where the accused No.6, the Sub Inspector, directed her to plead guilty. Then, accused Nos.7 to 9 were directed to deal with her properly. Thus, they took her to the inner room and cruelly manhandled her. They beat her with a cane and a stick. Her head was hit against the wall. When she cried aloud, her neck was pressed and stamped on the abdomen. Entreaties made by her mother, who was standing outside, were neglected. She was dragged across the floor and caned all over the body; the beating continued from 5 p.m. to 8 p.m. At that time, the accused No.1 came there, informed that the ornaments were available in their house itself and that they had no complaints. Then her parents and brothers were called to the police station, and after obtaining a signed statement that they had no complaint, she was let off. She was unable even to sit erect when she left the police station. Accused Nos.7 to 9 told her that if the incident was disclosed to anyone, she would not be allowed to live peacefully. On 21.07.2006, she went to the General Hospital and was admitted and treated there.”

As it turned out, the Bench enunciates in para 4 disclosing that, “The learned Magistrate conducted an enquiry under Section 202 of Cr.P.C. The sworn statements of the complainant/petitioner and six witnesses were recorded. After considering the statement on oath of the petitioner and of the witnesses, the learned Magistrate formed an opinion that there was sufficient ground for proceeding. Accordingly, he issued process to the accused Nos.1 to 9. All accused except accused No.4 appeared. Since the offences alleged against the accused were triable by the Court of Sessions, the case as against the accused Nos.1 to 3 and 5 to 9 was committed to the trial court as per the order in C.P No. 35/2009 dated 28/08/2009. The case against the accused No. 4 was split up and refiled as C.P. No.101/2009. The trial court took the case on file as S.C. No.1181/2009 against accused Nos.1 to 3 and 5 to 9 in the original complaint. Their status was rearranged as accused Nos.1 to 8. The status of the accused is referred to hereunder in that order.”

Be it noted, the Bench notes in para 5 that, “The respondents Nos.2 to 9 (Accused Nos.1 to 8) appeared before the trial court. The accused Nos.1 to 4 preferred Crl M.P. No.1851/2016, the accused No.5 preferred Crl. M.P. No.627/2015 and accused Nos.6 to 8 preferred Crl.M.P. No.1757/2015 for discharge under Section 227 of Cr.P.C. All the petitions were allowed, and all the accused were discharged under Section 227 of Cr.P.C. as per the common order dated 25.01.2017. The trial court found that there are no prima facie materials to proceed against the accused Nos.1 to 4 for the offences alleged against them. So far as the accused Nos.5 to 8 are concerned, though the trial court found that there were materials on record to show that accused Nos.6 to 8 badly beat and manhandled the victim at the police station and that they did the said act on the instruction of the accused No.5, it was held that the said act was done by them in discharge of their official duty or purporting to be in discharge of their official duty and they being the public servants are entitled to the protection under Section 197(2) of Cr.P.C. This revision petition has been filed challenging the common order.”

Most remarkably and most fundamentally, the Bench propounds in para 19 underscoring that, “Custodial torture flouts the basic rights of the citizens recognised by the Indian Constitution and is an affront to human dignity. Article 21 of the Constitution of India guarantees the right to life and personal liberty to every individual. This fundamental right includes protection from torture, inhuman or degrading treatment, and arbitrary detention. There is a built-in guarantee against torture or assault by the state or its functionaries. Chapter V of Cr. P.C (Chapter V of BNSS) deals with the powers of arrest of persons and the safeguards required to be followed by the police to protect the interests of the arrested person. Article 22 of the Constitution outlines the fundamental rights of arrested persons. The police authorities have the responsibility to adhere to legal procedures, refrain from violence and ensure the safety of detainees while in custody. Any violation of these norms could lead to a breach of the individual's right to life and a violation of human rights. When the cops who are meant to protect and uphold the law become its transgressors, it is a curious case of the fence itself eating the crops. The Supreme Court has, in many cases, expressed concern at the atrocities perpetrated by the protectors of law. In State of M.P. v. Shyamsunder Trivedi and Others [(1995) 4 SCC 262], the Supreme Court discussed the issue of custodial torture and its ramifications on human rights. The court stressed the need to ensure accountability for authorities in cases of torture or violence committed while in custody and emphasised the importance of protecting the rights of the accused. The Supreme Court in D.K. Basu v. State of West Bengal [(1997) 1 SCC 416] upheld the rights of the individual being arrested and condemned unauthorised arrest or detention. It also issued various guidelines to prevent custodial death. In Arnesh Kumar v. State of Bihar and Another [(2014) 8 SCC 273] while issuing guidelines to prevent unnecessary arrest and detentions by police officers and Magistrates, the Supreme Court emphasised that the custodial death is considered as one of the severe offences in a civilised society that adheres to the principles of the rule of law. 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 Cr.P.C. 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. Nor can it be said that inflicting unjustified custodial torture is reasonably and intrinsically connected with the discharge of, or purported discharge of, the official duty of the police officer concerned to avail the protection of Section 197 of Cr.P.C.”

It is worth noting that the Bench notes in para 20 that, “As stated already, there are specific averments in the complaint that the accused Nos. 6 to 8 at the instruction of the accused No.5 took the petitioner to the inner room of the police station, brutally tortured her physically and mentally and cruelly beat her with a cane and a stick from 5 p.m. to 8 p.m. Her head was hit against the wall. When she cried aloud, her neck was pressed and stamped on the abdomen. She was dragged across the floor. It has also come out from the records that she was hospitalised on 21.07.2006 and treated as an inpatient till 03.08.2006. The medical records reveal that there were injuries on her body. These acts of the accused Nos.5 to 8 could have no reasonable connection with their official duties, and the pretended or fanciful claim that they committed these acts in the course of performance of their official duties cannot be entertained. Their official duties did not authorise them to assault or abuse the petitioner in custody, when there is nothing on record to show that there was any obstruction or resistance from her. 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. In P.P.Unnikrishnan v. Puttiyottil Alikutty [(2000) 8 SCC 131], the Supreme Court refused to grant the benefit of Section 197 to police officers accused of inflicting custodial torture. It reasoned that inflicting custodial torture and unlawful detentions were an abuse or a transgression of official duty, as these acts were beyond the scope of official duty and authority. Recently in Gurmeet Kaur v. Devender Gupta (2024 SCC OnLine SC 3761), it was held that Section 197 of Cr.P.C would not apply to a case where a public servant is accused of any offence which is de hors or not connected to the discharge of his official duty.”    

Finally and as a corollary, the Bench then concludes by holding in para 22 that, “For the reasons stated above, I hold that the discharge of accused Nos. 5 to 8 on the ground that the prosecution against them is bad for want of sanction under Section 197(1) of Cr.P.C. cannot be justified. Therefore, the impugned order to the extent it allows Crl.M.P.No.627/2015 and Crl.M.P.No.1757/2015 and discharging accused Nos. 5 to 8 is hereby set aside. The trial court is directed to frame charge against accused Nos. 5 to 8 for those offences attracted against them and proceed with the trial in accordance with the law. If the trial court finds that the offence presumably committed by them is not exclusively triable by the Court of Sessions, it shall follow the procedure contemplated under Section 228 (1)(a) of Cr.P.C. The Criminal Revision Petition is allowed in part as above.”