Custodial Death or Torture: How to Claim Compensation

Has someone in your family died or been seriously hurt in police or judicial custody? Three separate processes are meant to begin, and none of them waits for the other two. Most families are told about one of them and never hear about the rest.

Here are the three tracks side by side, then each one in turn. None of them needs the police station's agreement to start.

The three tracks, side by side

Track	What it can get you	Who runs it	Your first step
1. Inquest and magisterial inquiry	An official finding on how the death happened, recorded independently of the police version	A Magistrate empowered to hold inquests, alongside the police inquest	Write to the District Magistrate, ask for the inquiry under Section 196 of the BNSS, and ask to attend
2. Criminal case against the officers	Named officials investigated and prosecuted, and the evidence that produces	The police station, or the Superintendent of Police, or a Magistrate if the station refuses	Give written information of a cognizable offence and take the free copy
3. Writ for compensation	Money paid by the State for violating Article 21, without waiting for a conviction	You, through a lawyer, in the High Court or Supreme Court	Secure the medical and inquest papers first, then file

Track 3 does not wait for Track 2 to end, and a slow Track 2 does not close Track 3. There is also a fourth, free route through the National Human Rights Commission, dealt with after the three.

Track 1. The inquest and the magisterial inquiry

The Code of Criminal Procedure, 1973 is gone. From 1 July 2024 the law is the Bharatiya Nagarik Suraksha Sanhita, 2023, and the custodial death provision is Section 196, not the old Section 176.

Section 196(2) is the one that matters. Where a person dies or disappears, or rape is alleged on a woman, while in “the custody of the police or in any other custody authorised by the Magistrate or the Court”, then in addition to the police inquiry, “an inquiry shall be held by the Magistrate within whose local jurisdiction the offence has been committed”. The word is shall, and that inquiry is separate from the police investigation, not part of it.

Two sub-sections belong to the family and are the ones most often skipped. Section 196(5): the Magistrate “shall, wherever practicable, inform the relatives of the deceased whose names and addresses are known, and shall allow them to remain present at the inquiry”, relative meaning parents, children, brothers, sisters and spouse. Section 196(6): the body must be forwarded for medical examination “within twenty-four hours of the death of a person”, unless that is impossible “for reasons to be recorded in writing”.

Alongside it runs the police inquest under Section 194. The officer in charge must inform the nearest Executive Magistrate empowered to hold inquests and, before two or more respectable inhabitants, report the apparent cause of death “describing such wounds, fractures, bruises, and other marks of injury as may be found on the body”. That report reaches the District or Sub-divisional Magistrate within twenty-four hours.

Which magistrate holds the inquiry now?

Under the old Section 176(1A) the inquiry had to be held by a Judicial Magistrate or Metropolitan Magistrate. The BNSS does not repeat that wording, and Section 194(4) names those empowered to hold inquests as “any District Magistrate or Sub-Divisional Magistrate and any other Executive Magistrate specially empowered in this behalf by the State Government or the District Magistrate”.

By a Full Commission decision of 14 May 2024, the National Human Rights Commission took the view that its own 2020 circular insisting on a Judicial Magistrate “has become nugatory since Section 176 (1) (A) of the Code is no more in existence”, and withdrew it. An inquiry already pending on 1 July 2024 continues before the Judicial or Metropolitan Magistrate, under the saving clause in Section 531.

That is the Commission's reading, not a Supreme Court ruling. What it means for you is simple. Do not assume a judicial officer is holding the inquiry. Ask in writing who is holding it, and on what date.

NHRC guidelines on running such an enquiry require it “at the earliest without undue delay”, a visit to the place of occurrence, a public notice in vernacular newspapers so witnesses come forward, and “a free and fair opportunity … to the relatives of the victim while recording their statements”. The enquiry must fix the cause of death, name anyone responsible, and assess acts of commission or omission by public servants. It must examine the inquest report, the post-mortem and viscera reports, the prisoner's initial health screening report, the treatment records and the police general diary entries. Each of those is a document you can ask for by name.

Track 2. The criminal case against the officers

Torture in custody is a named offence with its own illustration. Section 120(1) of the Bharatiya Nyaya Sanhita, 2023 punishes voluntarily causing hurt to extort a confession, or information which may lead to detection of an offence or misconduct, with up to seven years and fine. Illustration (a) reads: “A, a police officer, tortures Z in order to induce Z to confess that he committed a crime. A is guilty of an offence under this section.” Where grievous hurt is caused, Section 120(2) raises it to ten years.

The problem is never the section. It is getting the complaint recorded at a station whose own officers are the suspects. The BNSS gives a ladder:

At the station. Under Section 173(1) information about a cognizable offence may be given orally or electronically, and is recorded regardless of where the offence took place. Section 173(2) says a copy “shall be given forthwith, free of cost, to the informant or the victim”. Take it.
If refused, post it to the Superintendent of Police. Section 173(4) lets you send the substance in writing and by post, and if satisfied it discloses a cognizable offence the Superintendent “shall either investigate the case himself or direct an investigation to be made by any police officer subordinate to him”.
If that fails, apply to the Magistrate. Section 173(4) allows it, and Section 175(3) lets the Magistrate order investigation on that application, supported by an affidavit.

One new hurdle deserves plain warning. Section 175(4) says that where the complaint is against a public servant acting in the course of official duties, the Magistrate may order investigation only after a report on the incident from the officer superior to him, and after considering the public servant's own account. That step did not exist in the old Code. Put your version on record early and in writing, so it is not the only account before the Magistrate.

Track 3. The writ for compensation

This is the track most families are never told about, and it is the one that pays.

In Nilabati Behera versus State of Orissa, decided 24 March 1993, a mother's letter about her son's death in police custody was treated as a petition under Article 32. The Supreme Court held that the public law claim is “distinct from, and in addition to, the remedy in private law for damages for the tort”, that it rests on strict liability, and that “the defence of sovereign immunity in such cases is not available to the State”. A citizen complaining of infringement of Article 21 “cannot be told that for the established violation of the fundamental right to life, he cannot get any relief under the public law”.

In D.K. Basu versus State of West Bengal, decided 18 December 1996, the Court laid down eleven requirements for every arrest and said failure to comply exposes the officer to departmental action and to contempt of court. It confirmed the public law award is “in addition to the traditional remedies and not in derogation of them”, is without prejudice to a civil suit, and that “no strait jacket formula can be evolved” for the amount. What the State pays may later be adjusted against civil damages.

Most of those eleven requirements are now statute rather than judicial direction: the arrest memorandum attested by a family member sits in Section 36 of the BNSS, information of the arrest to a nominated relative in Section 48, and examination of the arrested person by a government medical officer in Section 53. One that stays a direction of the Court is requirement 8, that the person be examined by a trained doctor every 48 hours while in detention. Cite the sections first, and D.K. Basu behind them.

Be honest about the limits. In Sube Singh versus State of Haryana, decided 3 February 2006, the Court set out what it asks first: whether the violation of Article 21 is “patent and incontrovertible”, whether it is “gross and of a magnitude to shock the conscience of the court”, and whether the torture alleged resulted in death or is “supported by medical report or visible marks or scars or disability”. Where the only material is the person's own statement, it may send the family to the ordinary civil and criminal remedies instead, though it held that every custodial violence “is outright condemnable and per se actionable”.

Read those together and the lesson is not about law. It is about paper.

The NHRC route, and what it can and cannot do

Since 14 December 1993, by letter No. 66/SG/NHRC/93 to the Chief Secretaries of all States and Union Territories, every District Magistrate and Superintendent of Police has had to report custodial deaths and custodial rapes to the Secretary General “within 24 hours of occurrence or of these officers having come to know about such incidents”. That letter adds a line worth quoting back: “Failure to report promptly would give rise to presumption that there was an attempt to suppress the incident.” A further letter of 21 June 1995 confirmed that deaths in judicial custody must be reported the same way.

The duty is on the officials, not on you. Your own complaint is separate, free, and can be filed online.

Under Section 12 of the Protection of Human Rights Act, 1993 the Commission may inquire, on its own motion or on a petition, into a violation of human rights or into “negligence in the prevention of such violation by a public servant”. Under Section 18 it may recommend compensation or damages, recommend prosecution, recommend immediate interim relief at any stage, and approach the Supreme Court or a High Court for directions. The Government must send back comments within one month.

Two limits matter. The Commission recommends, it does not order. And Section 36(2) bars it from inquiring “after the expiry of one year from the date on which the act constituting violation of human rights is alleged to have been committed”. Our guide on how to file an NHRC human rights complaint covers the form itself.

The first 48 hours: what must not be lost

Sube Singh decides Track 3 on the strength of the medical record. So the medical record is what you protect on day one.

Ask in writing that the post-mortem be video recorded. Since a letter of 10 August 1995 from the then Chairperson, Justice Ranganath Misra, NHRC has asked all States that post-mortems in police custody and jail deaths be video filmed and the recordings sent to it. In March 1997 it recommended a Model Autopsy Form and an added inquest procedure to every State.
Ask for the arrest papers. Section 36 of the BNSS requires a memorandum of arrest attested by a family member or a respectable local person and countersigned by the person arrested. Section 48 requires the arrest and place of detention to be communicated forthwith to a relative or friend he nominates, with an entry in a station register.
Ask for the arrest medical examination. Section 53 requires a government medical officer to examine every arrested person soon after arrest, and the record “shall mention therein any injuries or marks of violence upon the person arrested, and the approximate time when such injuries or marks may have been inflicted”. A clean Section 53 report at admission, set against injuries at death, is the strongest pair of documents a family can hold.
Photograph the body before it is handed over, with date, time and a witness, and collect the whole custody record including the health screening on admission to jail.
Write down names. Section 36 requires every arresting officer to bear “an accurate, visible and clear identification of his name”, and Section 56 puts the duty of reasonable care of an accused's health and safety on whoever has custody. If nobody gives a name, record the refusal.

If the person is alive and still being held, start instead with habeas corpus and getting a detained person produced.

Mistakes that cost families the case

Allowing cremation before the post-mortem is videographed, or before a second opinion is considered. The body is the evidence.
Waiting for the criminal case before filing the writ. The public law award is in addition to the other remedies, not instead of them.
Letting the one year run out at NHRC. Section 36(2) is a hard bar.
Signing station papers without reading them, or without keeping a copy.
Assuming a Judicial Magistrate is holding the inquiry. After 1 July 2024 that is no longer safe.

A worked example

The names and facts below are invented, purely to show the sequence.

Ramkishan Vasave, 34, is picked up on a Monday evening. On Wednesday morning his wife Sarita is told at the station that he has died. Nobody offers her any paper.

That day she sends three written requests and keeps every receipt. To the District Magistrate: hold the inquiry under Section 196, and inform her of the date so she can attend under Section 196(5). To the Superintendent of Police: the memorandum of arrest under Section 36, the register entry under Section 48, the medical examination report under Section 53, and that the post-mortem be video recorded, citing the NHRC letter of 10 August 1995. At the station: written information of a cognizable offence, and the free copy of it under Section 173(2).

The station will not record it properly, so on Thursday she posts the substance to the Superintendent under Section 173(4). Two weeks bring nothing, and her lawyer applies to the Magistrate with an affidavit under Section 175(3), warned that Section 175(4) will need a report from a superior officer first. She files the NHRC complaint online, well inside the one year in Section 36(2).

Her writ petition is built on what she already holds: the Section 53 report showing no injuries at admission, and the post-mortem showing them at death. That contrast, not her narration, is what Sube Singh asks a court to look for. Legal help costs her nothing, because Section 12 of the Legal Services Authorities Act, 1987 entitles a person in custody, a woman, a child, and a member of a Scheduled Caste or Scheduled Tribe, among others, to free legal services through the District Legal Services Authority.

Where RTI fits

The Right to Information Act, 2005 will not run any of the three tracks, and must never delay them. It is how you get the paper afterwards: station diary and arrest register entries, the record of who was informed under Section 48, the report of the death sent to NHRC, and the status of the magisterial inquiry. Expect refusals under Section 8(1)(h), which exempts “information which would impede the process of investigation or apprehension or prosecution of offenders”. Appeal them, and argue Section 8(2), which lets a public authority release information where the public interest in disclosure outweighs the harm.

Draft with the AI RTI Drafter, test the reply with the PIO Reply Checker, count deadlines on the Timeline Tracker, read section text on the RTI Act, 2005 page, and take the escalation ladder from The RTI Playbook.

Questions families ask

Which section covers a magisterial inquiry into a custodial death now?

Section 196 of the Bharatiya Nagarik Suraksha Sanhita, 2023, and specifically sub-section 2. The old Section 176 of the Code of Criminal Procedure, 1973 is no longer live law.

Can we claim compensation before anyone is convicted?

Yes. Compensation under Article 32 or Article 226 is a public law remedy for breach of Article 21 and does not wait for a conviction. Nilabati Behera held it rests on strict liability.

Can the State say it is not liable because the officers were on duty?

No. Nilabati Behera held that the defence of sovereign immunity is not available to the State in such cases, and is alien to the concept of a guarantee of fundamental rights.

Do we still need a civil suit if we win the writ?

Possibly. D.K. Basu says the writ award is without prejudice to a civil suit, and may be adjusted against damages decreed later. It is not a full assessment of loss.

Who has to report the death to the NHRC, and how fast?

The District Magistrate and the Superintendent of Police, within 24 hours, under the Commission's letter of 14 December 1993, extended to judicial custody in June 1995. The duty is theirs, and your own complaint is separate.

Is there a deadline for going to the NHRC?

Yes. Section 36(2) of the Protection of Human Rights Act, 1993 bars any inquiry after one year from the date of the alleged violation. File early even if the facts are incomplete.

The person survived but was tortured. Does any of this apply?

Most of it. Section 120 of the Bharatiya Nyaya Sanhita, 2023 covers hurt caused to extort a confession, and the writ remedy is open. But Sube Singh warns that without a medical report, visible marks or corroboration, a court may send the claim to the ordinary remedies instead, so get a medical examination documented immediately.

Sources

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