RTI When There Is a Death in Government Custody or Hospital

When someone dies in police custody, in a jail, or inside a government hospital where they were admitted as a patient, the family's first instinct is often grief — followed quickly by confusion and helplessness. Government officials may be evasive. The post-mortem report may not be handed over. The inquiry promised by the authorities may seem to go nowhere. Written requests may be ignored.

This guide is for those families. It explains what the law requires the government to do when a death occurs in custody or in a government hospital, what records are created and must be preserved, and how the Right to Information Act can be used to obtain those records and build a documentary foundation for accountability. Nothing in this guide will undo the loss. But it explains how to ensure that the institutions responsible cannot simply pretend the records do not exist.

What the Law Requires When Someone Dies in Custody

The death of a person while in state custody — whether in a police lock-up, a jail, or a government facility — is not an ordinary administrative event. It is among the most serious human rights situations recognised by Indian law, because the state holds total physical control over the person who dies. Multiple legal obligations are triggered the moment such a death occurs.

Mandatory reporting to the NHRC within 24 hours: The National Human Rights Commission has issued standing guidelines — upheld and reinforced by the Supreme Court — requiring that every custodial death be reported to the NHRC within 24 hours of the death. This obligation falls on the Superintendent of Police, the jail superintendent, or the head of the facility concerned. The report must include the circumstances of the death, the cause of death if known, and the steps being taken. Failure to report within 24 hours is itself a violation that the NHRC can take cognizance of.

Mandatory Magistrate inquiry under Section 176 CrPC / BNSS: Section 176 of the Code of Criminal Procedure, 1973 — now mirrored in the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) — requires that whenever a person dies in the custody of the police, a Magistrate must inquire into the cause of death. This is a mandatory judicial inquiry, not a discretionary administrative one. The Magistrate's inquiry is separate from and in addition to any police investigation. Crucially, the inquiry report is a formal document that must be completed, submitted, and preserved — and it is accessible under RTI once completed.

D.K. Basu guidelines: In D.K. Basu v. State of West Bengal (1997), the Supreme Court laid down a set of binding requirements for the treatment of persons in police custody. Among the most important for our purposes: a memorandum must be prepared at the time of arrest and signed by the arrested person and a witness; the time and date of arrest must be documented; and any medical examination must be conducted by a qualified doctor at the time of arrest and regularly thereafter during custody. These records — the arrest memorandum, the medical examination record, the custody register — are all RTI-accessible and often reveal discrepancies between the official account of a death and what the records actually show.

Post-mortem report: Whenever a death occurs in any of these circumstances, a post-mortem examination is mandatory. The post-mortem is conducted by a government doctor (or at a government hospital) and produces a written report stating the cause of death, the condition of the body, injuries found, and the medical opinion on the manner of death. This report is among the most critical documents in any custody death case. It is a government record, and the family is entitled to obtain it.

Who Investigates: The Different Types of Custody Deaths

The legal framework treats different types of custody deaths with different procedures, and understanding which category applies determines which authorities you approach and which records exist.

Police lock-up deaths: A death occurring while a person is in the custody of the police — typically in a police station lock-up after arrest but before being produced before a magistrate — is the most serious category. Police custody deaths trigger the fullest set of obligations: D.K. Basu compliance, mandatory Magistrate inquiry, NHRC reporting within 24 hours, and automatic referral for CBI investigation in many High Court decisions. The police station general diary (also called the station house diary) is the primary contemporaneous record — it records every event in the police station chronologically.

Judicial custody / prison deaths: A death occurring while a person is in a jail or remand home under judicial custody (i.e., after being produced before a magistrate and remanded) is also subject to NHRC reporting and Magistrate inquiry. The jail superintendent is legally required to file a report, and the prison's medical records, admission records, and any complaint records related to the deceased are accessible under RTI.

Encounter deaths: When a person dies during an alleged encounter with police — in circumstances where the police claim a confrontation occurred — the Supreme Court in People's Union for Civil Liberties v. State of Maharashtra (2014) and subsequent decisions has laid down mandatory guidelines. These include immediate FIR registration against the police officers concerned (regardless of whose version is accepted), independent CID investigation, NHRC notification, and magisterial inquiry. An RTI application can verify whether each of these steps was taken.

Deaths in government hospitals while under state care: When a person is admitted to a government hospital as a patient and dies during the course of treatment — particularly if the circumstances raise questions about medical negligence, denial of treatment, or hospital conditions — the post-mortem report, the clinical notes, the duty register, and any internal inquiry conducted by the hospital are accessible under RTI. If the person was in government custody and died at a government hospital (for example, a prisoner taken for treatment), both the prison/police records and the hospital records are relevant and accessible.

The 48-Hour Urgent Response: When It Applies Even After Death

Section 7(1) proviso of the RTI Act requires a response within 48 hours — not 30 days — when "the information sought concerns the life or liberty of a person." At first, this may seem irrelevant when the person has already died. But the 48-hour rule serves a purpose even in custody death cases, and invoking it can be critical in the first days after a death.

Preserving CCTV footage: CCTV footage from police stations, jails, and government hospitals is typically overwritten on a loop — often within 24 to 72 hours. An RTI application invoking the Section 7(1) proviso, sent within the first 24 hours, creates a legal obligation on the CPIO to respond — and, critically, puts the public authority on notice that the footage is being sought and must be preserved. Courts have held that an RTI application asking for CCTV footage relating to a death in custody is a matter concerning "life or liberty" for the purposes of accountability and the applicant's right to know. If the footage is destroyed after a formal request was made, that destruction becomes evidence of wilful suppression.

Custody register and arrest record: A family member urgently needing to confirm that their relative was in a specific facility at the time of death, and not transferred elsewhere (which could affect which authority has jurisdiction over the inquiry), can invoke the 48-hour rule to get the custody register entry — a factual record of who was held, when, and under what authority.

Medical records before they are tampered with: In cases of death in government hospitals, an urgent RTI application for the medical file, the treating doctor's notes, and the nursing register can protect against retrospective alteration of records. The application creates a timestamp showing that the family asked for the records before any inquiry was completed.

Even if the CPIO does not respond within 48 hours — which is common — having filed the application creates a legal record. Every day of delay after the 48-hour deadline is a violation that can be raised before the First Appellate Authority or the Information Commission on appeal.

What RTI Can Obtain: The Full List of Accessible Records

In a custody death or government hospital death, the following categories of documents are created as a matter of law and administrative practice — and are accessible under the RTI Act.

FIR relating to the death: Whenever a death in custody occurs, an FIR should be registered — including, in encounter cases, an FIR against the police officers involved. The FIR is a public document and can be obtained from the police station where it was registered. Under RTI, you can ask for a certified copy of the FIR and the daily diary entry for the date and time of the death.

Post-mortem report: Conducted by a government doctor at a government mortuary or hospital. The report is a government record. The family has an unambiguous right to it — it cannot be withheld on grounds of third-party privacy or investigation secrecy once the post-mortem is complete. Specifically ask for the complete post-mortem report including the viscera report if a chemical analysis was sent (this often takes weeks but can be requested separately when ready).

Magisterial inquiry report: Under Section 176 CrPC/BNSS, the Magistrate conducting the inquiry produces a written report with findings on the cause and circumstances of death. Once submitted, this report is a completed government document and is disclosable. It should be requested from the office of the District Magistrate or the Revenue Department of the district concerned.

Police station general diary entries (GD entries): The general diary (also called the station diary or roznamcha) is a contemporaneous log maintained at every police station, recording every event — arrests made, persons received into custody, medical examinations conducted, transfers, and incidents. The entries for the relevant dates and times are among the most important records in any custody death case because they are supposed to be contemporaneous and harder to alter retroactively.

Arrest memo and custody record: The D.K. Basu guidelines require an arrest memo to be prepared at the time of arrest. The custody record shows when the person was brought in, under what authority they were held, when medical examinations were conducted, and when custody was transferred. Discrepancies between the custody record and the official account of the death are frequently how families and lawyers establish that something went wrong.

CCTV footage preservation request: As noted above, file this as a matter of urgency. Ask the police station, jail, or hospital for all available CCTV footage from the relevant areas (cell block, custody area, corridor, hospital ward) for a specified time period around the death. Even if the footage is subsequently claimed to be "unavailable" or "damaged," the RTI application establishes that you asked — and creates accountability if the footage was deliberately destroyed.

Death certificate: Issued by the municipal authority (Municipal Corporation or local body) based on the post-mortem report and death intimation. If the family has not received the death certificate, an RTI application to the municipal body can confirm when it was issued and obtain a certified copy.

Medical records from government hospital: If the person was being treated at a government hospital at the time of death — whether as a patient admitted from outside or as a prisoner brought for treatment — all medical records including the case notes, nursing notes, drug administration record, and any pre-death investigation results are accessible. These are essential to establish what treatment was or was not provided in the hours before death.

Internal inquiry report (hospital): If the hospital conducted an internal inquiry into the death, that report is a government document and is RTI-accessible.

NHRC complaint status: If your family or a human rights organisation has already filed a complaint with the NHRC, you can file an RTI application with the NHRC (a Central public authority) asking for the status of the complaint, any notice issued to the state government, and any response received. The NHRC's own records about the case are accessible under RTI; the second appeal for NHRC-directed RTIs goes to the CIC.

Understanding Section 8(1)(h): The Investigation Exemption and How to Counter It

The most common exemption invoked to deny RTI requests in custody death cases is Section 8(1)(h), which permits a public authority to withhold information that "would impede the process of investigation or apprehension or prosecution of offenders." It is routinely over-applied.

What Section 8(1)(h) actually permits: The exemption is narrow. It applies only if disclosing the specific information sought would actively impede an ongoing investigation — for example, revealing the identity of a witness who has not yet given a statement, or disclosing forensic results before they have been tested by the defence. It is not a blanket immunity for all information connected to any matter under investigation.

How to counter it: First, identify whether the investigation is actually ongoing, or whether it has been completed and the exemption is being used as a permanent shield. A magisterial inquiry that was submitted to the District Magistrate six months ago is a completed document. An FIR that was filed and closed as a B report (no offence made out) is a concluded proceeding. In both cases, Section 8(1)(h) does not apply.

Second, invoke Section 8(2), which provides that notwithstanding any exemption, a public authority may disclose information if the public interest in disclosure outweighs the harm. A family seeking accountability for the death of their relative has a compelling public interest claim — and the Supreme Court in multiple decisions has held that accountability for custodial deaths is a matter of constitutional importance.

Third, file your First Appeal under Section 19(1) within 30 days, specifically challenging the invocation of Section 8(1)(h) and citing the above arguments. Request the First Appellate Authority to determine whether the investigation is genuinely ongoing and whether the specific documents sought — post-mortem report, magisterial inquiry report, general diary entries — actually risk impeding any live investigative process.

What Is Exempt vs. What Must Be Disclosed

Not everything is obtainable, and families should have realistic expectations.

Generally accessible: Post-mortem report (once completed), magisterial inquiry report (once submitted), general diary entries for the relevant period, arrest memo, custody register entries, death certificate, hospital medical records, duty roster of the police station or hospital ward, CCTV footage (subject to urgency timelines), internal inquiry reports, NHRC complaint status.

Potentially withheld during active investigation: Witness statements in an ongoing criminal investigation, forensic analysis results in an active prosecution, the investigation diary maintained by the investigating officer under Section 172 CrPC (this has statutory protection and is not disclosable under RTI even by the police). However, these limitations apply to the investigation materials specifically — not to the administrative records listed above.

What cannot be used to block disclosure: "We are investigating" as a general response to every question, regardless of whether the specific document sought would actually impede anything. "The matter is sub-judice" — sub-judice status of a court case does not, by itself, make government records exempt under RTI. The exemption is Section 8(1)(b) for court proceedings, and it is narrow.

State Human Rights Commissions: The State-Level Route

For deaths in state government facilities — state police stations, state jails, state government hospitals — the State Human Rights Commission (SHRC) is the human rights body with jurisdiction, parallel to the NHRC at the central level. Every state has an SHRC established under the Protection of Human Rights Act, 1993.

An RTI application to the SHRC of the concerned state can reveal:

• Whether a complaint about the death was filed with the SHRC
• What notice, if any, was sent to the state government
• What response was received from the police or prison department
• Whether the SHRC has made any interim or final order

SHRC records are state public authority records, with the second appeal going to the SIC (State Information Commission) of that state. For Delhi-specific matters — Delhi Police (a Central Government body), Tihar/Rohini/Mandoli jails (state bodies under GNCTD) — the jurisdictions differ: Delhi Police RTIs go to the CIC, while Delhi prison RTIs go to the DIC.

Using RTI Evidence to Escalate: CBI/SIT Demand, High Court Writ, NHRC Complaint

RTI is an investigative and accountability tool, not a remedy in itself. The documents it obtains become the foundation for every other form of accountability.

NHRC complaint: The NHRC is empowered to recommend monetary relief to the victim's family, to direct CBI investigation, and to issue notices to state governments. A complaint backed by RTI evidence — the post-mortem report showing injuries inconsistent with the official account, the general diary entry showing the person was healthy when brought in, the magisterial inquiry report that was never shared with the family — is significantly more persuasive than an unsubstantiated allegation.

Demand for CBI or SIT investigation: If the state police are investigating a death that occurred in their own custody, the conflict of interest is obvious. RTI evidence establishing what the police's own records show — particularly discrepancies between general diary entries and official statements — is the most effective basis for approaching the High Court or the Supreme Court with a petition asking for transfer of the investigation to the CBI or for the appointment of an SIT. Several High Court orders transferring custody death investigations to the CBI have been based precisely on this kind of RTI-surfaced record.

High Court writ petition under Article 226: The High Court has the power to issue a writ of habeas corpus (even posthumously, to determine lawfulness of custody before death), a writ of mandamus compelling the authorities to complete and disclose the inquiry report, or a broader writ directing the state to provide compensation and conduct a time-bound investigation. RTI documents — especially if the CPIO's response shows that records exist but are being withheld, or that inquiries have not been conducted at all — provide a factual basis for the petition.

Consumer Forum for medical negligence: If the death occurred in a government hospital in circumstances suggesting medical negligence — denial of emergency treatment, failure to provide available medicine, wrong treatment — the RTI evidence about duty rosters, bed registers, and treatment records can support a complaint before the District Consumer Disputes Redressal Commission.

Sample RTI Questions for Custody Death Cases

The following questions can be adapted depending on the specific scenario — police lock-up, jail, or government hospital. File as separate applications addressed to each relevant authority, since different records are held by different offices.

To the police station (CPIO: Station House Officer or designated CPIO of the district/range):

"Please provide certified copies of the general diary (station diary / roznamcha) entries for date of death and the two preceding days at police station name, covering all entries relating to name of deceased including entries recording the time and date of arrest, custody receipt, medical examination, and the recording of the death."

"Please provide a copy of the arrest memo prepared at the time of the arrest of name on date of arrest, as required under the D.K. Basu v. State of West Bengal guidelines issued by the Supreme Court of India."

"Please confirm the date and time on which the death of name was reported to the NHRC and to the Magistrate's court, as required under NHRC guidelines and Section 176 of the CrPC / BNSS. Please provide a copy of the intimation sent."

"Please provide all available CCTV footage from the police station premises — including the lock-up area, corridor, entry/exit gates, and courtyard — for the period date and time range. This request is made urgently under the proviso to Section 7(1) of the RTI Act (life or liberty), and the applicant requests that this footage be preserved and not overwritten pending this response."

To the District Magistrate's office (for the Magistrate inquiry report):

"Please confirm whether a magisterial inquiry has been ordered under Section 176 of the Code of Criminal Procedure, 1973 / BNSS into the death of name, who died in police custody at police station on date. If yes, please provide a certified copy of the inquiry report, the inquest report, and all findings submitted to the District Magistrate."

"Please confirm the name and designation of the Magistrate assigned to conduct the Section 176 inquiry, and the current status of the inquiry as of the date of this response."

To the government hospital (CPIO: Medical Superintendent or designated CPIO):

"Please provide a certified copy of the complete post-mortem report (including the inquest report, viscera report, and DNA/serological report if conducted) for name, who was brought to hospital name for post-mortem examination on date."

"Please provide certified copies of all medical records, treatment notes, nursing records, and drug administration charts for name for the period from date of admission to date of death at hospital name."

"Please provide a copy of the duty roster for the ward/casualty where name was admitted, for date of death and the preceding two days, showing the names and designations of all treating doctors and nursing staff on duty."

To the NHRC (Central public authority; second appeal to CIC):

"Please confirm whether a report of the custodial death of name, who died in the custody of police station / jail name in state on date, was received by the NHRC as required under NHRC guidelines. If yes, please provide a copy of the report received and any notice, show-cause, or order issued by the NHRC to the state government in this matter."

"Please provide the status of NHRC Case / Complaint No. complaint number, if available relating to the custodial death of name, including any interim orders, compliance reports received from the state government, and the present stage of proceedings."

To the jail superintendent (for prison death cases):

"Please provide a certified copy of the admission register entry for name, including the date of admission, the court order under which they were remanded, the category of custody (undertrial / convict), and the details of medical examination conducted at the time of admission."

"Please provide a copy of the death register entry for name, including the recorded cause of death, the time of death, the medical officer's certification, and the steps taken following the death."

Fee, Timeline, and Filing Basics

Under Section 6 of the RTI Act, 2005, the filing fee is ₹10 under the RTI (Regulation of Fee and Cost) Rules, 2005. BPL (Below Poverty Line) cardholders are fully exempt from the fee — attach a self-attested copy of the BPL card and state the exemption in the application.

Under Section 7(1), the CPIO must respond within 30 days. If the application invokes the Section 7(1) proviso — concerning life or liberty — the deadline is 48 hours. In custody death cases, always invoke the 48-hour provision explicitly in the application text for requests related to CCTV footage, custody register entries, and any records that may be at risk of alteration or destruction.

If no response is received within 30 days (or 48 hours where invoked), or if the response is incomplete or evasive, file a First Appeal under Section 19(1) within 30 days of the expiry of the response period or the date of the response, whichever is applicable. Address it to the First Appellate Authority — a senior officer within the same public authority.

If the First Appeal is unsatisfactory, file a Second Appeal under Section 19(3) within 90 days:

• To the CIC for Central Government bodies (Delhi Police, NHRC, Central Government hospitals like AIIMS, Safdarjung, RML)
• To the DIC for Delhi State bodies (GNCTD hospitals, Delhi jails — Tihar, Rohini, Mandoli)
• To the relevant SIC for all other state government bodies (state police, state jails, state hospitals)

Under Section 20, the Information Commission can impose a penalty of ₹250 per day, up to ₹25,000 personally on the CPIO for wilful refusal to provide information. In custody death cases, where records are frequently withheld without legal basis, Section 20 is a meaningful deterrent that should be raised in the Second Appeal.

A Note on Tone and Realistic Expectations

Obtaining records through RTI will not restore what was lost. The purpose of using RTI in a custody death case is specific and practical: to prevent the government from pretending the records do not exist, to create a documented chain of evidence before memories fade and files are quietly closed, and to put accountability obligations on the official record.

When the post-mortem report shows injuries that contradict the police's version of events, that report is now a government document that cannot be taken back. When the general diary shows the person was medically fit when brought in, that entry is on the record. When the magisterial inquiry report is finally handed over — perhaps only after a First Appeal — it is evidence, not a government secret.

RTI works in custody death cases because government authorities must maintain records, and those records tell the truth even when individual officers do not. The process is not fast. It may take months. But the documents obtained are the foundation on which every other remedy — NHRC complaint, High Court petition, CBI demand, criminal prosecution of officers — is built.

The family deserves those documents. The law says so.

If you have lost a family member in police custody, a jail, or a government hospital and need help identifying the right authorities, drafting precise RTI applications, and navigating the First Appeal process, RTISathi.com can help. We will make sure your questions are legally framed, addressed to the correct CPIO, and structured to make evasion and exemption abuse as difficult as possible. Visit RTISathi.com or call us at +91-8826039646 to get started.