Deal with the medical record first, because everything else depends on it and the window closes fast. The Bharatiya Nagarik Suraksha Sanhita, 2023 requires that a person who is arrested be examined soon after the arrest by a medical officer in government service, or if none is available by a registered medical practitioner. That doctor must record any injuries or marks of violence and the approximate time they may have been inflicted, and a copy of the report must be furnished to the arrested person or a person nominated by him. Where the arrested person is a female, the examination must be by or under the supervision of a female medical officer.
The Supreme Court's 1996 directions on arrest and custody add two things: on request, the arrestee is to be examined at the time of arrest with any major and minor injuries recorded in an inspection memo signed by both the arrestee and the arresting officer and a copy given to him; and he is to be medically examined every forty eight hours in detention by a doctor from an approved panel. Ask for both, in front of the magistrate if you are being produced.
Bruising changes colour and disappears. Photograph every mark from more than one angle with a dated reference in the frame. Get examined at a hospital of your own choosing as soon as you are out, tell the doctor how the injuries were caused, ask that the history be recorded, and keep the case sheet. Keep the clothes you were wearing, unwashed, in a paper bag.
The offence that fits
The Bharatiya Nyaya Sanhita, 2023 contains a provision aimed squarely at this. Whoever voluntarily causes hurt for the purpose of extorting from the sufferer, or from a person interested in the sufferer, any confession or any information which may lead to the detection of an offence or misconduct, or to compel restoration of property, is punishable with imprisonment of either description for a term which may extend to seven years and a fine. The section carries an illustration in the statute itself: a police officer who tortures a person to induce him to confess is guilty of an offence under it. Wrongful confinement, and a public servant knowingly disobeying a direction of the law with intent to cause injury, are separate offences that often go with it.
Where the complaint goes
- The magistrate, at the first production. Say what happened, show the injuries, and ask that the statement and the visible marks be recorded in the order. This is the single most valuable step and it costs nothing.
- The senior police officer. A written complaint to the Deputy Commissioner of Police or Superintendent of Police, by registered post and email, naming the officers and the date. Where an officer in charge of a police station refuses to record information about a cognizable offence, the Sanhita lets you send the substance in writing and by post to the Superintendent of Police.
- The magistrate, again, for an investigation. A magistrate empowered to take cognizance may order an investigation on an application supported by an affidavit. Where the complaint is against a public servant for something arising in the discharge of official duties, the Sanhita requires the magistrate first to receive a report from the officer superior to him and to consider the public servant's own assertions about the situation. That is a real filter and it slows things down.
- The State Human Rights Commission. Its powers and its limits are set out in the separate answer on that body. The one thing to note now is that it will not inquire into a matter after a year from the date of the alleged violation.
- The High Court. Where the custody is itself illegal, or where nothing is moving, a writ petition is the route, and our guide on habeas corpus against an arrest and remand explains that filing.
Custodial death and custodial rape
Where a person dies or disappears, or where rape is alleged to have been committed on a woman, while in the custody of the police or in any other custody authorised by a magistrate or a court, the Sanhita requires an inquiry by the magistrate within whose local jurisdiction the offence was committed, in addition to the police investigation. The magistrate must, wherever practicable, inform the relatives of the deceased and allow them to be present at the inquiry, and the body is to be forwarded for examination within twenty four hours of the death unless it is not possible for reasons recorded in writing. Families should ask for that inquiry by name and ask to be present.
What stands in the way, said honestly
Two obstacles are worth naming in advance. The first is sanction: where a public servant is accused of an offence alleged to have been committed while acting or purporting to act in the discharge of official duty, no court can take cognizance without the previous sanction of the appropriate Government, though the Government must decide within one hundred and twenty days and sanction is deemed granted if it does not. Whether custodial assault to extract a confession is an act in the discharge of official duty at all gets litigated. The second obstacle is time. These cases are slow, the evidence is in the hands of the people complained against, and delay is fatal. Compensation, where it comes, comes through the writ route, and our guide on compensation for illegal detention sets out how that claim is framed. If the underlying accusation is false, our note on the remedies open to a person falsely accused deals with that separate front.