Guest Post: A Minor Issue or a Fatal Flaw? Reading Amended Section 176 Cr.P.C.

(I am proud to host this guest post by Ms. Pawani Mathur, an advocate practising law in New Delhi)

I had an opportunity to attend a conference on Torture, organised by the Working Group on Human Rights of the United Nations and other prominent groups in Siri Fort, New Delhi. The conference threw up an important issue in Section 176 of India’s Code of Criminal Procedure 1973 [Cr.P.C.] that seems to have crept in after the Amendment Act of 2005 (ultimately brought into force in 2006). That provision, to remind readers, is one that details the procedure to be followed for conducting ‘inquests’ on corpses to determine the cause of death, where the person died in police custody. 

The issue raised at the conference was that in this context of deaths due to suspected police violence in custody, the Indian statutory framework is still permitting inquests to be conducted by possibly biased police officers and Executive Magistrates, rather than facially neutral Judicial Magistrates. This short post examines the validity of the criticism. 

Section 176 Cr.P.C. – Before and After the Amendments

As mentioned above, the Cr.P.C. requires authorities to conduct inquests to determine the cause of death. As per Section 174 Cr.P.C., it is the police who normally conduct inquests. However, for certain kinds of deaths the law also empowers a magistrate to conduct the inquest. 

Before the Amendment Act in 2005, Section 176 Cr.P.C. stated many kinds of cases in which a magistrate could conduct inquests. For none of these cases did the magistrate replace the police power to conduct an inquest, importantly. Further, these inquests could be conducted by both Executive and Judicial Magistrates alike.

As per the Lok Sabha Debates, the need to amend this section was felt to address the growing crisis of custodial torture and rape. The Amendment Act thus changed this regime dramatically by creating a category of cases where an inquest must be conducted by Judicial Magistrates. Section 176(1A) Cr.P.C., labelled as “one of the most important things” done by the Amendment Act, lists two such cases, namely: (i) custodial deaths or disappearances of any person, (ii) custodial rape. It stated that for these cases, “in addition to the inquiry or investigation held by the police, an inquiry shall be held by the Judicial or Metropolitan Magistrate”. The reason is not hard to imagine. If a case involves suspected offences by police, any inquiry into done by other police officers would suffer from doubts of bias and prejudice. Since Executive Magistrates are part of the Executive Branch – and often police officers – the same issues arise in any inquiries conducted by them in such kinds of cases involving custodial violence.

Bogged by Internal Contradictions?

We know what Section 176(1A) Cr.P.C. says and can now appreciate the issue raised at the start of the post. For this purpose, it is necessary to consider Section 176(5) Cr.P.C.: 

“The Judicial Magistrate or the Metropolitan magistrate or Executive Magistrate or police officer holding an inquiry or investigation, as the case may be, under Sub-section (1A) shall, within twenty-four hours of the death of a person, forward the body with a view to its being examined to the nearest Civil Surgeon or other qualified medical man appointed in this behalf by the State Government, unless it is not possible to do so for reasons to be recorded in writing.]” (Emphasis supplied)

If the inquest under Section 176(1A) must be conducted by Judicial Magistrates / Metropolitan Magistrates, why is Section 176(5) talking about police officers and Executive Magistrates?

I could not find any decisions directly on the point. In its celebrated decision of PUCL v. State of Maharashtra [(2014) 10 SCC 635], the Supreme Court says nothing about this issue. Some High Court decisions did discuss Section 176(1A), and assumed that the correct approach was what is only stated in Section 176(1A), without noticing its contradiction with what is stated in Section 176(5) in the classes of cases mentioned therein [See, e.g., State of Gujarat and Anr. vs. Union of India (UOI) and Ors, MANU/GJ/0506/2010 (Gujarat High Court); A.P. Civil Liberties Committee (APCLC) and Ors. v. Government of A.P. and Ors., MANU/AP/0031/2009 (Andhra Pradesh High Court)]. Since these discussions are obiter dicta and not binding, it means the question is potentially still an open one. 

The National Human Rights Commission is aware of the issue, though. It issued a clarificatory notification on how to interpret Section 176(1A) as far back as 2013. Problematically, it created a new test that is nowhere in the provision itself, stating that an inquiry by a Judicial Magistrate / Metropolitan Magistrate is required only “in those cases of custodial death where there is reasonable suspicion of foul-play or well-founded allegation of commission of offence”. For all other cases, the inquiry could be conducted by Executive Magistrates as well as police officers. 

Conclusion – A Need for Clarity

This post highlighted how there is clearly an open issue in how to interpret Section 176(1A) Cr.P.C. I am not arguing for any particular interpretation of a conjoint reading of clauses (1A) and (5). The point of writing this is only to bring out this contradiction and argue that this is a question of significant importance for the courts to decide on. 

By all accounts, Parliament inserted that provision to create a new class of cases where an inquiry by Judicial Magistrates was mandatory. While I have not argued in favour of any view as being the correct one, it seems that this method of undermining Section 176(1A) is probably not it. 

Section 176 is by no means a sexy topic like many others that criminal law has, which makes it such a staple for news headlines. Yet, inquests are perhaps the single most important set of legal proceedings that help unearth the truth in the worst kinds of cases – where the authority designed to help the people ends up hurting them instead. By clarifying Section 176 Cr.P.C. to ensure that India’s legal regime on inquests is as fair and transparent as possible, the system will help to reinforce accountability where it matters most: in cases of life and death.