A death in custody

No situation on this list carries more institutional danger than a death in a police station, a lock-up, a jail, or any custody authorised by a Magistrate or court. The agency that held the person is the agency whose conduct is in question; the law therefore inserts a Magistrate between the police and their own record, and the human-rights machinery inserts itself above both. Everything in this playbook flows from one principle: in a custodial death, the independence of the record is the whole point.

The first sixty minutes

1. Fix the jurisdictional fact — you, on the phone. “Custody” under s. 196(2) means police custody or any custody authorised by a Magistrate or court — the station lock-up, remand, jail, a custody-authorised hospital bed. Also covered: a disappearance from custody, and an allegation by a woman of rape in custody. If the fact fits, the mandatory inquiry is triggered by the statute itself; nobody needs to order it.
2. The SHO’s s. 194 duties still run. Intimation to the nearest empowered Executive Magistrate, spot inquest with local witnesses, report to the DM/SDM within 24 hours. In a custodial case, insist that the inquest panchanama is held by an officer who was not part of the custody — in practice the police themselves route it to another station or a senior officer; note on your record who held it.
3. Secure the scene — the SHO, on your recorded request. The cell, the case diary, the station CCTV, the general diary entries for the custody period: ask, in writing before the hour is out, that all of these be preserved. In a custodial death the first sixty minutes are when records are most at risk, and a contemporaneous preservation request is worth more than any later summons.
4. Move the body — s. 196(6). The body goes to the nearest civil surgeon or appointed medical officer within 24 hours of death, reasons in writing if not. In custodial cases the working practice adds two layers: the post-mortem is done by a team (not a single doctor, where practicable) and is videographed per NHRC protocol. Ask the DM&HO’s office to arrange both; confirm in writing.
5. Inform the relatives — s. 196(5). Wherever practicable, relatives must be informed and allowed to attend the inquiry. Do it early and record it: the family’s presence at the post-mortem stage (through a representative, per practice) is both their right in substance and the administration’s best protection against the allegation of a managed record.
6. Brief upward — you to the DM, the SP’s office in parallel. A custodial death is a same-hour intimation to the Collector as District Magistrate, not a same-day one. NHRC practice requires prompt intimation of custodial deaths to the Commission — in the working arrangement that intimation moves through the police and the DM’s office within 24 hours; your job is to confirm it has gone, and to say so on file.

The first twenty-four hours

The central question of the first day is: who holds the mandatory inquiry? Handle it exactly as the research flags it. CrPC 176(1A) expressly named the Judicial Magistrate or Metropolitan Magistrate for custodial-death inquiries. BNSS 196(2) says only “the Magistrate” within whose local jurisdiction the offence has been committed — the express “Judicial” label is not reproduced, and commentary continues to debate the point. The bare text is as stated; how it settles in practice is unverified and evolving. The working rule for a probationer: treat the custodial-death inquiry as going to the Judicial Magistrate per prevailing practice and NHRC guidelines, unless the State issues contrary instructions — and if the file lands on your desk as an Executive Magistrate, raise the question in writing to the DM before proceeding, rather than either grabbing or dropping the jurisdiction silently.

Whichever Magistrate inquires, the executive side’s first-day work is the same: the preservation of records requested in hour one is followed up with a written list (CCTV footage with its hash or seizure panchanama, general diary extracts, arrest and remand papers, medical-examination records at admission to custody); the post-mortem videography is confirmed done; the relatives’ attendance is recorded; and the DM’s office consolidates the intimations — Commission, Government, and the prosecution branch.

Expect the spot to be tense. The family and often a crowd will gather at the station or hospital; political visitors will follow. The law-and-order overlay is handled as in any crowd situation — presence, patience, the dispersal ladder only if genuinely needed — but with one custodial-case-specific rule: the police whose custody is in question do not manage the family. Put the Tahsildar or another Executive Magistrate physically between them.

Cover yourself — the record

By tonight there must exist, on paper:

• Your timeline note: when death was reported, by whom, when each intimation went up and out.
• The written preservation request to the SHO (CCTV, general diary, case diary, medical records), with acknowledgment.
• The inquest panchanama, noting who held it and the witnesses.
• The body-despatch and post-mortem record: 24-hour compliance or recorded reasons; the videography arrangement confirmed in writing.
• The notice to relatives under s. 196(5) and a note of their attendance or inability.
• Your written reference to the DM on the Judicial-versus-Executive inquiry question, if the file has come to you.
• Every oral instruction of the day confirmed in writing before you sleep.

Legal hooks

• BNSS s. 196(2) — mandatory Magistrate’s inquiry, in addition to the police inquiry, where a person dies or disappears, or a woman alleges rape, while in police custody or custody authorised by a Magistrate or court.
• BNSS s. 194 — the police inquest and its 24-hour report to the DM/SDM still apply.
• BNSS s. 196(4)–(6) — exhumation power; relatives informed and allowed to attend; body to the civil surgeon within 24 hours unless reasons recorded.
• CrPC s. 176(1A) — the predecessor text naming the Judicial Magistrate: the source of the live drafting question under the BNSS.
• NHRC protocols — prompt intimation to the Commission and videography of the post-mortem: practice, applied as the working norm.

Who to call

• The Collector (District Magistrate) — same hour, through the DRO or directly per district practice.
• The SP — parallel intimation; the seizure and preservation orders run through the police hierarchy.
• The jurisdictional Judicial Magistrate’s court — per prevailing practice, the inquiry forum; the DM’s office makes the formal reference.
• The civil surgeon / DM&HO — post-mortem team and videography.
• The Tahsildar — family liaison and the Executive Magistrate presence at the spot.
• The Superintendent of the jail, where the death is in judicial custody — records and the jail’s own intimation chain.

Mistakes that end careers

• Letting the custodial police run the record. The station whose custody is in question writing its own inquest, escorting its own body, briefing the family — every step of that pattern is later read as concealment, whatever the truth was.
• Sitting on the intimation. A custodial death reported upward a day late is, institutionally, a cover-up admitted. The clock is the same hour, not the same week.
• The silent jurisdiction grab. An Executive Magistrate who conducts the mandatory custodial inquiry without flagging the s. 196(2) question, and whose inquiry is later held incompetent, has produced a worthless record at the maximum possible cost. Raise it in writing; proceed on orders.
• An unvideographed post-mortem. Whatever the examination finds, an unrecorded custodial post-mortem will be disbelieved. The videography is cheap; its absence is unexplainable.
• Family kept at the gate. s. 196(5) is a right, and its denial is the single most quoted fact in every custodial-death agitation. Inform, admit, record.

Questions you’ll actually get

“The SP’s office says their DSP will do the enquiry — do we still need a Magistrate’s inquiry?” Yes. s. 196(2) mandates the Magistrate’s inquiry in addition to whatever inquiry or investigation the police hold. The departmental enquiry answers the department’s questions; the statute’s answer to custody is an inquiry by someone who does not report to the SP.

“The man was arrested last night and died in hospital this morning — is that a custodial death?” If he was in police custody or custody authorised by a Magistrate when he died — including hospitalisation under guard during that custody — the s. 196(2) machinery applies. The location of death matters less than the legal custody at the time. When in doubt, treat it as custodial and let the inquiry say otherwise.

“The family is demanding a second post-mortem at another hospital.” There is no automatic entitlement, but the demand is a signal to over-protect the record: videography, a team post-mortem, preservation of viscera per medical practice, and the family’s representative present. If serious doubt survives the first examination, s. 196(4) allows the body to be disinterred and examined even after burial — which is exactly why the first record must be complete.

“Who tells the NHRC?” In the working arrangement the intimation moves through the police chain and the DM’s office promptly after the death. Your responsibility as the field magistrate is narrower and sharper: confirm on your file that it has gone, with date. “I assumed the SP’s office sent it” is not a sentence you want to say at a Commission hearing.