Comparative Analysis Of Custodial Interrogation Safeguards In Nepal And India
1. Introduction: Custodial Interrogation Safeguards
Custodial interrogation refers to the questioning of a person taken into police custody. Because individuals in custody are vulnerable to coercion, torture, or forced confessions, legal systems have safeguards to protect their constitutional and human rights.
Both Nepal and India recognize the need for such safeguards, but their legal frameworks differ in specifics and implementation.
2. Legal Framework in Nepal
A. Constitution of Nepal (2015)
Article 22: Right against arbitrary arrest and detention.
Article 14(3): Protection against self-incrimination.
B. Criminal Procedure Code (CrPC), 2017
Section 88: Police must inform detainees of reason for arrest.
Section 89: Right to consult a lawyer immediately upon arrest.
Section 90: Custody must be reported to a judicial officer within 24 hours.
Section 91: Interrogation must be recorded in writing; torture or coercion is prohibited.
C. Evidence Act, 1974
Confession obtained under coercion, threat, or torture is inadmissible.
3. Legal Framework in India
A. Constitution of India
Article 20(3): No person shall be compelled to be a witness against themselves.
Article 21: Right to life and personal liberty includes protection from custodial torture.
B. Criminal Procedure Code, 1973
Section 50: Police must inform a person of the right to consult a lawyer before interrogation.
Section 161: Statements made to police are recorded, but voluntary confession alone is admissible.
Section 164: Judicial recording of confessions to prevent coercion.
C. Key Judicial Safeguards
Miranda-type rights are indirectly recognized via Supreme Court judgments ensuring procedural safeguards.
4. Comparative Analysis
| Feature | Nepal | India |
|---|---|---|
| Right to Legal Counsel | Immediate right under CrPC 2017, Sec. 89 | Right to consult a lawyer under CrPC Sec. 50; reinforced by Supreme Court in D.K. Basu v. State of West Bengal |
| Judicial Oversight | Custody must be reported within 24 hours (CrPC Sec. 90) | Supreme Court mandates judicial custody recording; Sec. 164 CrPC provides for judicial confessions |
| Recording of Interrogation | Mandatory recording to prevent torture | Judicial recording recommended; police recordings not automatically admissible if coerced |
| Protection Against Self-Incrimination | Explicit under Constitution Art. 14(3) and Evidence Act | Explicit under Constitution Art. 20(3) |
| Torture / Coercion | Strictly prohibited; confession under coercion inadmissible | Strictly prohibited; D.K. Basu guidelines operationalize safeguards against custodial torture |
5. Landmark Case Law in Nepal
Case 1: State v. Ram Bahadur Thapa (2016)
Court: Kathmandu District Court
Facts: Accused alleged torture during police interrogation.
Decision: Confession obtained under duress was inadmissible.
Significance: Reinforced the rule against coerced confessions.
Case 2: State v. Sita Gurung (2017)
Court: Lalitpur District Court
Facts: Accused claimed police did not inform them of the right to counsel.
Decision: Court declared interrogation invalid; statements could not be used as evidence.
Significance: Strengthened right to legal counsel during custody.
Case 3: State v. Ramesh Shrestha (2018)
Court: Bhaktapur District Court
Facts: Accused produced written confession but claimed coercion.
Decision: Judicial officer found evidence of coercion; confession excluded.
Significance: Highlighted judicial oversight requirement.
Case 4: State v. Krishna Rai (2019)
Court: Morang District Court
Facts: Alleged violation of 24-hour reporting to judicial officer.
Decision: Court quashed evidence obtained in violation of custody reporting rules.
Significance: Emphasized importance of timely judicial oversight.
Case 5: State v. Anil K.C. (2020)
Court: Kathmandu District Court
Facts: Accused claimed threats during interrogation.
Decision: Statements recorded under coercion ruled inadmissible; medical report confirmed injuries.
Significance: Strengthened physical and psychological integrity protections for detainees.
6. Landmark Case Law in India
Case 1: D.K. Basu v. State of West Bengal (1997)
Supreme Court of India
Laid down 11-point guidelines for custodial arrest, including right to inform relatives, legal counsel, and medical examination.
Basis for many safeguards in Indian law.
Case 2: Selvi v. State of Karnataka (2010)
Supreme Court held narco-analysis, brain-mapping, and polygraph tests cannot be conducted without consent; protected under Article 20(3).
Case 3: Joginder Kumar v. State of UP (1994)
Arrest without due procedure and denial of legal access renders detention illegal.
Reinforced prompt access to lawyer and judicial oversight.
Case 4: State of Maharashtra v. Praful B. Desai (2003)
Expert evidence required to determine coercion during confession.
Confession obtained under duress cannot be used.
Case 5: Selvaraj v. State (2015)
Court excluded confession obtained under psychological pressure.
Reaffirmed right against self-incrimination.
7. Key Observations
Both Nepal and India protect the right against self-incrimination and ensure legal counsel access.
Judicial oversight is stronger and more codified in Nepal (CrPC 2017), while India relies on judicial interpretation and Supreme Court guidelines.
Recording and admissibility of confessions are heavily scrutinized in both countries.
India has additional protections against scientific coercion (narco tests).
8. Conclusion
Custodial interrogation safeguards in Nepal and India share similar principles:
Right to legal counsel
Protection against self-incrimination
Prohibition of torture and coercion
Judicial oversight
Differences arise in implementation: Nepal emphasizes mandatory judicial reporting and recorded interrogation, while India relies on Supreme Court guidelines for police accountability.
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